THE PEOPLE, Plaintiff and Respondent, v. MIGUEL LOPEZ, Defendant and Appellant.
B315320
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Filed 9/26/22
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. LA030413)
Christopher Lionel Haberman, 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, Deputy Attorneys General, for Plaintiff and
Miguel Lopez appeals the denial of his motion to withdraw his plea and vacate his conviction pursuant to
The Legislature has declared that
“(g) The immigration consequences of criminal convictions have a particularly strong impact in California. One out of every four persons living in the state is foreign-born. One out of every two children lives in a household headed by at least one foreign-born person. The majority of these children are United States citizens. It is estimated that 50,000 parents of California United States citizen children were deported in a little over two years. Once a person is deported, especially after a criminal conviction, it is extremely unlikely that he or she ever is permitted to return.
“(h) It is the intent of the Legislature to codify Padilla v. Kentucky2 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.”
In People v. Vivar (2021) 11 Cal.5th 510, 516 (Vivar), our Supreme Court elaborated on these findings:
“The population of the United States includes millions of immigrants who arrived as children, attended schools, and found work here. (See Department of Homeland Security v. Regents of Univ. of Cal. (2020) 591 U.S. ___ [207 L.Ed.2d 353, 140 S.Ct. 1891, 1932] (conc. & dis. opn. of Kavanaugh, J.).) Whether they become citizens or not, these immigrants’ ties to our country are evident not only in their work and schooling, but in how they‘ve formed attachments and families of their own. In contrast, what ties they once had to their country of birth—from which they may lack even memories—often slip away. So when long-standing noncitizen residents of this country are accused of committing a crime, the most devastating consequence may not be a prison sentence, but their removal and exclusion from the United States. (See People v. Martinez (2013) 57 Cal.4th 555, 563 (Martinez).) Because the prospect of deportation ‘is an integral part,’ and often even ‘the most important part,’ of a
noncitizen defendant‘s calculus in responding to certain criminal charges (Padilla v. Kentucky (2010) 559 U.S. 356, 364 [176 L.Ed.2d 284, 130 S.Ct. 1473] (Padilla)), both the Legislature and the courts have sought to ensure these defendants receive clear and accurate advice about the impact of criminal convictions on their immigration status, along with effective remedies when such advice is deficient. (E.g., Pen. Code, §§ 1016.2 et seq. ,1473.7 ; Jae Lee v. United States (2017) 582 U.S. ___ [198 L. Ed. 2d 476, 137 S.Ct. 1958] (Lee); Padilla, at p. 360; Martinez, at p. 559; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 798.)”
Against this backdrop, appellant contends that at the time of his plea, defense counsel failed to advise him that he would be subject to mandatory deportation and permanent exclusion from the United States as a consequence of pleading no contest to an aggravated felony under federal immigration law. As a result, appellant suffered prejudicial error which damaged his ability to meaningfully understand, defend against, and knowingly accept the actual adverse immigration consequences of the conviction and sentence resulting from his plea. Appellant maintains that because his claim of prejudicial error was supported by objective corroborative evidence, the superior court erroneously denied his motion to withdraw his plea and vacate his conviction.
We conclude appellant has demonstrated a reasonable probability that if he had been properly advised of the immigration consequences of his plea, he would not have pleaded no contest to an offense that would subject him to mandatory deportation from the United States. Accordingly, we reverse and remand with instructions to grant appellant‘s motion to withdraw his plea and vacate his conviction pursuant to
FACTUAL AND PROCEDURAL BACKGROUND
1. The charged offenses3
Between December 22, 1997, and May 20, 1998, appellant and codefendant Gustavo Montoya took or attempted to take money from four businesses by threatening the employees with what appeared to be a handgun. The total estimated loss came to $946.
Upon his arrest, Montoya provided officers with an air pellet gun—a replica of a .45-caliber semiautomatic handgun—which he said was the weapon used in the crimes. Montoya identified appellant as the driver of the getaway car. Appellant admitted the air gun belonged to him.
2. The plea
At the arraignment on the charges on August 4, 1998, the prosecution offered a plea deal pursuant to which appellant would plead to one count of second degree robbery and receive a maximum sentence of two years in state prison. Appellant accepted the offer.
The prosecutor advised appellant that the maximum term on all the charges was eight years eight months in state prison, but under the plea agreement, appellant “could receive anywhere up to two years in state prison.” With respect to the immigration consequences of the conviction, the prosecutor stated: “Also, if you are not a citizen of the United States, your conviction may result in your being deported, denied naturalization or denied readmission if you leave the country.” When asked if he understood, appellant answered, “Yes.”
Appellant then pleaded no contest to one count of second degree robbery. Appellant‘s attorney joined in the waivers, concurred in the plea, and stipulated to a factual basis for the plea on appellant‘s behalf, adding “that this was entered as a result of a plea bargain the maximum two year term and we both believe that it is in the best interest of [appellant] to enter this plea bargain and not necessarily an admission of culpability or liability, that this case is to be controlled by People against West.[4]”
The trial court found appellant had knowingly, intelligently and effectively waived his constitutional rights, and freely and voluntarily entered into the plea. At the request of defense counsel, sentencing was put over to a later date to give appellant an opportunity to prepare and present factors in mitigation.
3. Sentencing
According to the preconviction probation report, appellant was 22 years old at the time of the offenses. He had no prior criminal record and had a stable employment and residential history over the preceding five years. The probation officer noted that these crimes appeared to be out of character for appellant, but nevertheless recommended that probation be denied.
4. The motion to vacate the conviction5
Appellant filed his motion to vacate the conviction pursuant to
Appellant‘s declaration
In his declaration appellant averred:
Appellant came to the United States when he was 13 years old and lived in the United States continuously until he was deported in August 2016. He completed middle school and high school here and was a lawful permanent resident of the United States. Having grown up in the United States, appellant considered himself an American.
In court proceedings on August 4, 1998, appellant entered a plea of no contest to one count of second degree robbery in People v. Miguel Lopez, Los Angeles Superior Court case No. LA030413-02. Appellant was 22 years old at the time and had no prior experience with the criminal justice system: He had never been arrested, much less convicted of any crime before. He had no prior knowledge of the immigration consequences of a conviction.
At the time he entered his plea, appellant was not advised that a conviction for second degree robbery would constitute an aggravated felony under federal immigration law. Appellant was unaware that as a consequence of this conviction, he would be subject to mandatory deportation and permanently ineligible for lawful permanent residency in the United States.
Although he received a general advisement during the plea proceedings that immigration consequences could occur, appellant incorrectly presumed that he would not suffer any adverse immigration consequences because of his status as a lawful permanent resident.
While appellant was in custody, his family retained attorney David Kwan to represent him. Appellant believes Mr. Kwan thought appellant was a
Appellant first learned of the mandatory immigration consequences of his conviction when he was deported in August 2016 and consulted with an immigration attorney. At that time, and in August 2018, and again in June 2021, appellant‘s immigration attorney advised him that he was permanently ineligible for lawful residence in the United States because of his aggravated felony conviction.
Although he was warned at the time of his plea of immigration consequences that could occur, due to his own error and ignorance appellant did not appreciate the seriousness of the charge and the mandatory immigration consequences that would occur by entering a plea. Had he known then that he was bargaining away his lawful resident status, appellant would never have accepted a plea, but instead would have exercised his right to a jury trial to attempt to remain with his family in the United States.
Until he was deported, appellant lived with his mother, whom he supported financially and emotionally. Appellant had steady employment, and his mother relied on appellant‘s income to pay her mortgage and household expenses. Now these costs are borne by his siblings, which is a great hardship for them. Appellant is very close with his brother and two sisters, as well as his five nieces and his nephew, all of whom are United States citizens.
Appellant has been living in Rosarito, Baja California, Mexico since he was deported. He has no friends or family in Mexico. Appellant has tried to find work as a laborer, maintenance worker, housekeeper, or any available job, but because of his age, the pandemic, and the current economic situation in Mexico, appellant has not been able to secure any employment. He is totally dependent on his family in the United States for financial support. Appellant‘s former employer (Ability Pathways in Sun Valley, California) has assured him of employment if he is able to regain lawful entry to the United States.
The exhibits
In support of the motion, appellant submitted the following documents:
Exhibit B: A letter from the president of Ability Pathways, where appellant had been employed prior to his removal from the United States, stating appellant was a diligent worker and an excellent employee. The company offered to sponsor appellant as an immigrant worker.
Exhibit C: Letters from appellant‘s mother, two of his siblings, and a niece, attesting to appellant‘s good character, deep roots in the United States, close ties to his family in the United States, and lack of ties to his home country. Appellant‘s mother described how she immigrated to Los Angeles in 1985 with five children between the ages of four and twelve after the death of her husband. Appellant became a father figure to his younger siblings and always took care of his mother, whose health and well-being have declined significantly since appellant was deported. Appellant also became a father figure to his young nieces when his brother-in-law died, caring for them to enable his sister to finish nursing school.
Exhibit D: A letter dated August 24, 2016, from the Department of Homeland Security, U.S. Immigration and Customs Enforcement, advising appellant that he is “prohibited from entering, attempting to enter, or being in the United States” at any time because he has been “convicted of a crime designated as an aggravated felony, as defined under
5. The hearing and ruling on the motion to vacate
The hearing on appellant‘s motion to vacate his conviction took place on September 20, 2021. Appellant did not appear personally because of his removal to Mexico. The trial court decided the motion entirely on the written documents and argument of counsel.
Appellant‘s counsel argued that he had not been advised of the mandatory immigration consequences that would result from this conviction, and the advisement that a conviction “may result in” certain adverse immigration consequences was insufficient to inform appellant of the actual consequences of mandatory deportation and permanent exclusion from the United States.
The government did not file a written opposition, but argued at the hearing that appellant was adequately advised of his rights and the immigration consequences of his plea, he accepted the plea bargain to avoid “a lot of time in prison,” and the People intended that appellant be convicted of a felony.
The trial court denied the motion, finding insufficient objective evidence that appellant would have rejected the plea had he understood the true immigration consequences, and failing to see any alternative disposition that could have been negotiated.
DISCUSSION
I. Applicable Law
A. Section 1473.7
A person convicted of an “aggravated felony” is subject to mandatory deportation and permanent exclusion from the United States. (
Aggravated felonies include “crime[s] of violence . . . for which the term of imprisonment [is] at least one year” (
Under these definitions, robbery is an aggravated felony under United States immigration law, conviction of which subjects a noncitizen to mandatory removal from the United States. (
C. Standard of review for section 1473.7 motion proceedings
Our Supreme Court has endorsed the independent standard of appellate review for
II. Appellant Demonstrated Error Under Section 1473.7, Subdivision (a)(1)
A. Timeliness.
Interspersed throughout the respondent‘s brief are reminders that appellant‘s motion to vacate was heard 23 years after his conviction in this case and five years after he was ordered removed from the country by federal immigration authorities. By repeatedly mentioning this fact, respondent seems to suggest that the motion to vacate was not timely filed, and because appellant failed to exercise due diligence, his assertions lack credibility. We decline respondent‘s invitation to discount appellant‘s claims based on the passage of time since his conviction.
In any event, and contrary to respondent‘s suggestion, the 23-year gap between appellant‘s conviction and his motion to vacate under
The advisement that appellant may face certain adverse immigration consequences was insufficient to inform appellant that the conviction would subject him to mandatory deportation and permanent exclusion from the United States. As our Supreme Court has explained, there is a stark difference between an actual and a theoretical risk of deportation:
“A defendant entering a guilty plea may be aware that some criminal convictions may have immigration consequences as a general matter, and yet be unaware that a conviction for a specific charged offense will render the defendant subject to mandatory removal. Thus, as we have previously noted in a different context, 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.’ [Citation.] And for many noncitizen defendants deciding whether to plead guilty, the ‘actual risk’ that the conviction will lead to deportation—as opposed to general awareness that a criminal conviction ‘may’ have adverse immigration consequences—will undoubtedly be a ‘material matter[]’ that may factor heavily in the decision whether to plead guilty. (Giron, supra, 11 Cal.3d at p. 797; cf. INS v. St. Cyr (2001) 533 U.S. 289, 325 [150 L. Ed. 2d 347, 121 S. Ct. 2271] [for noncitizens, ‘[t]here is a clear difference . . . between facing possible deportation and facing certain deportation‘]; U.S. v. Rodriguez-Vega (9th Cir. 2015) 797 F.3d 781, 790 [‘Warning of the possibility of a dire consequence is no substitute for warning of its virtual certainty. As Judge Robert L. Hinkle explained, “Well, I know every time that I get on an airplane that it could crash, but if you tell me it‘s going to crash, I‘m not getting on.” ‘].)” (People v. Patterson (2017) 2 Cal.5th 885, 895–896; Manzanilla, supra, 80 Cal.App.5th at pp. 905–906; Ruiz, supra, 49 Cal.App.5th at p. 1065.)
Indeed, ” ‘[w]here immigration law is “succinct, clear, and explicit” that the conviction renders removal virtually certain, counsel must advise his client that removal is a virtual certainty.’ [Citations.] Immigration law is clear that removal is ‘virtually certain’ when ‘the immigration statute or controlling case law expressly identifies the crime of conviction as a ground for removal,’ ” as in the instant case. (Manzanilla, supra, 80 Cal.App.5th at p. 905.)
Here, appellant‘s declaration explains a reasonable basis for his erroneous belief that he would not be subject to adverse immigration consequences: In the absence of any advice from counsel, appellant incorrectly assumed that his status as a lawful permanent resident of the United States shielded him
The People have not raised any evidentiary objections to the statements in appellant‘s declaration, and the facts set forth in support of the motion to vacate are uncontroverted. This uncontroverted evidence was sufficient to establish appellant‘s error in entering the plea. As in Camacho, where the defendant‘s declaration and testimony established facts showing not just counsel error, but also defendant‘s ignorance and his own error in believing that the terms of the negotiated plea would allow him to avoid adverse immigration consequences, we conclude appellant has demonstrated that errors damaged his “ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of [his] plea of . . . nolo contendere.” (
III. Appellant Established Prejudicial Error
A person seeking to withdraw a plea under
Our Supreme Court has declared that “showing prejudicial error under
” ‘A “reasonable probability” “does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” ’ ” (People v. Soto (2022) 79 Cal.App.5th 602, 610 (Soto); People v. Rodriguez (2021) 68 Cal.App.5th 301, 324.) “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.)
Other factors courts may consider in determining the reasonable probability that the defendant would have rejected the plea because of immigration consequences include: the defendant‘s remaining ties or lack thereof to his or her home country (Manzanilla, supra, 80 Cal.App.5th at p. 912; Mejia, supra, 36 Cal.App.5th at p. 872), the defendant‘s immigration status in the United States at the time of the plea (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 80–81; People v. Espinoza (2018) 27 Cal.App.5th 908, 917), the defendant‘s criminal history (Camacho, supra, 32 Cal.App.5th at p. 1011; Mejia, at p. 873; People v. Bravo (2021) 69 Cal.App.5th 1063, 1073–1074, review granted Dec. 15, 2021, S271782), and the defendant‘s employment history (Soto, supra, 79 Cal.App.5th at p. 611). And while the probability of obtaining a more favorable result at trial may be one factor a court considers in determining prejudice, it is not controlling or necessarily even the most important factor
It is not enough, however, for a defendant simply to declare that she would not have accepted any plea that would result in deportation. As our Supreme Court has observed, ” ‘when a defendant seeks to withdraw a plea based on inadequate advisement of immigration consequences, [courts] have long required the defendant corroborate such assertions with “objective evidence.” ’ ” (Vivar, supra, 11 Cal.5th at p. 530; People v. Alatorre (2021) 70 Cal.App.5th 747, 770; Mejia, supra, 36 Cal.App.5th at p. 872 [“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’ “].)
Appellant has met that requirement here.7
Appellant‘s declaration in support of the motion to vacate contains a detailed account of his strong ties to the United States, which is corroborated by the letters from his family and his former employer. When he was 13 years old, appellant was brought to Los Angeles along with his four siblings by his mother after the death of his father. He became a father figure and assumed responsibility for his younger siblings as the close-knit family established itself in its new home. Even as a teenager, appellant helped to support his mother and continued to do so until he was deported in 2016.
Appellant completed middle school and high school in Los Angeles. During those years he became a lawful permanent resident of the United States, and considered himself to be an American. Everyone in his family is now a United States citizen.
When appellant accepted a plea—unaware of the dire immigration consequences it carried—he was young and inexperienced, and had had no prior
In contrast to his strong ties to the United States, appellant has no ties to Mexico. He has suffered from the lack of family, friends and employment since he was deported in 2016, and his absence has caused considerable hardship for his family.
The evidence submitted in support of appellant‘s
However, courts, including the California Supreme Court, have held that an immigration advisement warning only that a conviction may carry certain adverse immigration consequences is wholly inadequate to inform the defendant that he or she will be deported, permanently excluded, and denied naturalization as a mandatory consequence of that conviction. (Vivar, supra, 11 Cal.5th at p. 521 [“To warn merely ’ “that his plea might have immigration consequences,” ’ in circumstances where the consequences were ‘certain,’ was ‘constitutionally deficient’ “]; People v. Patterson, supra, 2 Cal.5th at pp. 889, 895–896; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 204 [“advising a defendant that a no contest plea may in the abstract have immigration consequences, cannot be taken as placing him on notice that, owing to his particular circumstances, he faces an actual risk of suffering such“]; Manzanilla, supra, 80 Cal.App.5th at p. 906; Soto, supra, 79 Cal.App.5th at p. 609; Ruiz, supra, 49 Cal.App.5th at p. 1065; Espinoza, supra, 27 Cal.App.5th at p. 916.)
In this regard, respondent‘s reliance on People v. Diaz (2022) 76 Cal.App.5th 102, review granted June 15, 2022, S274129 (Diaz) is misplaced. Diaz was convicted following a no contest plea to one count of robbery in 1989. (Id. at pp. 104-105.) In Diaz, the appellate court affirmed the denial of Diaz‘s section
The appellate court also noted that at the time of his plea, Diaz had temporary resident status which he knew would soon expire. He had an upcoming appointment to obtain permanent resident status that he would necessarily miss if he accepted the plea and were incarcerated. Thus, even if Diaz believed his temporary legal status would protect him from being deported, he knew that legal status would expire, he would be unable to reestablish it, and he would no longer be in the country legally. In short, “[i]f [Diaz] believed his fate relied on his legal status, he would have understood that if he made the plea he would not be in the country legally after his temporary resident status expired and that he would potentially be subject to adverse immigration consequences.” (Diaz, supra, 76 Cal.App.5th at p. 114.) Nevertheless, and despite his aggressive self-advocacy on other matters, Diaz had no comment or questions when the district attorney advised him of the potential immigration dangers presented by the plea and conviction. (Id. at p. 116.)
The circumstances of appellant‘s plea and overall credibility could not be more different. In contrast to Diaz, appellant had no prior criminal history and no familiarity with the criminal justice system at the time of his plea. His interactions with the court during the plea colloquy, which were limited to responding to direct questions, were respectful and succinct. When appellant entered his plea, he was a lawful permanent resident and mistakenly believed that status would protect him from the potential immigration consequences of a conviction. But unlike Diaz, who knew his conviction would cause him to lose his legal status, appellant had no reason to question that assumption until many years after his plea when he was deported. Finally, appellant‘s clean record after his conviction stands in stark contrast to Diaz, who committed other crimes and another deportable offense before being deported for the robbery conviction.
Respondent further challenges appellant‘s showing of prejudicial error on the ground that he failed to present the declaration of an immigration expert or his defense counsel, David Kwan, to corroborate his claims. Not only does it appear that Mr. Kwan died long before appellant had any reason to inquire about his recollections of appellant‘s plea,10 but a moving party is not required to provide the declaration of plea counsel in support of a
Respondent also contends that appellant has failed to demonstrate “there was an alternative immigration-safe disposition that was necessarily available to him that would have been offered by the People and accepted by the court.” In the next sentence, respondent dismisses the proposed alternative dispositions identified by appellant as “fanciful speculation.” In any event, the Attorney General places far more weight on whether an immigration-neutral disposition would have been offered by the prosecutor and accepted by the trial court than this factor deserves in the court‘s consideration of the “totality of circumstances.” (Vivar, supra, 11 Cal.5th at p. 529.)
As our Supreme Court has explained, a defendant‘s decision to reject a plea bargain ” ‘might be based either on the desire to go to trial or on the hope or expectation of negotiating a different bargain without immigration consequences.’ [Citation.] When a court weighs whether a defendant would have taken the latter path, it need not decide whether the prosecution would actually ‘have offered a different bargain‘—rather, the court should consider ‘evidence that would have caused the defendant to expect or hope a different bargain would or could have been negotiated.’ ” (Vivar, supra, 11 Cal.5th at p. 529, quoting Martinez, supra, 57 Cal.4th at p. 567.)
Here, we conclude that appellant‘s personal history, deep ties to the United States, and at the time of his plea, his youth and lack of experience with the criminal justice and immigration systems sufficiently corroborate appellant‘s claim that his ability to remain in the United States with his family was a paramount concern. In the absence of any legal advice about the dire immigration consequences that would follow from his plea and conviction, appellant accepted a plea to an aggravated felony in the mistaken belief that the warning about possible adverse immigration consequences did not apply to him because of his lawful permanent resident status.
Applying our independent judgment, and viewing the totality of the circumstances, we conclude it is reasonably probable appellant would have rejected the plea had he correctly understood its actual immigration consequences. Appellant has carried his burden of establishing prejudicial error and is entitled to relief.
DISPOSITION
The order denying appellant‘s motion to withdraw his plea and vacate his conviction under
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.