THE PEOPLE, Plaintiff and Respondent, v. JOSEFINA RUIZ, Defendant and Appellant.
2d Crim. No.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX
Filed June 5, 2020
Steven D. Blades, Judge
CERTIFIED FOR PUBLICATION; (Super. Ct. No. KA010841); (Los Angeles County)
Assume a defendant wishes to plead guilty to a crime. She is an immigrant and is told: 1) her plea of guilty may make her ineligible to become a U.S. citizen; or 2) her plea of guilty will make her ineligible to become a U.S. citizen. Is there a significant distinction between the two advisements? Our Supreme Court and the Legislature think there is.
We, like all courts, must follow this view even when it involves the reversal of a plea of guilty that occurred three decades ago. We are mindful of the dissent‘s concerns, but the Supreme Court and the Legislature have spoken. The result here is required by law. (See People v. Patterson (2017) 2 Cal.5th 885, 889, 895;
We conclude Ruiz may pursue her current motion to vacate the conviction. She had filed an earlier unsuccessful motion to vacate the conviction in 2017. But that prior motion did not bar the current motion because it was based on a different ground and on an earlier version of
FACTS
In 1991, an informant told police that drug sales were occurring at Ruiz‘s home. After a search of her home, the police found 19 grams of cocaine and approximately $4,100 in a duffle bag in Ruiz‘s bedroom. Following her arrest, Ruiz entered into a negotiated plea agreement and pled no contest to possession for sale of cocaine base. She initialed an advisement in the written plea agreement stating, “I understand that if I am not a citizen of the United States, the conviction for the offense charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (Italics added.)
On December 16, 2016, Ruiz filed a motion to vacate her conviction and set a hearing date for January 6, 2017 (“2017 motion“). The 2017 motion was entitled “Notice of Motion and Motion to Reopen Case and Vacate Conviction; Memorandum of Points and Authorities [Pursuant to
In 2019, Ruiz filed a “Notice of Motion and Motion to Vacate Conviction Pursuant to
The trial court denied the 2019 motion, ruling that it lacked jurisdiction to consider Ruiz‘s motion. It found the current motion was an untimely “motion for reconsideration” of the prior 2017 motion.
DISCUSSION
Immigration Advisements
Ruiz contends she did not receive an adequate advisement about the immigration consequences of her plea. We agree.
Under
The California Supreme Court has held, however, that the words “may have” in a
In 1991, when Ruiz pled no contest to her offense, the plea form contained the following immigration advisement: “I understand that if I am not a citizen of the United States, the conviction for the offense charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (Italics added.) This was not an adequate advisement given the nature of her offense. (People v. Patterson, supra, 2 Cal.5th at pp. 889, 895.)
In Ruiz‘s 2017 motion, Ruiz‘s counsel argued the 1991 conviction must be vacated because Ruiz was not advised that her conviction ”may result in deportation.” But this motion should have been based on the ground that Ruiz
The trial court denied the 2017 motion, ruling that the advisement was valid because Ruiz was advised “the conviction for the offense charged may have the consequences of deportation.” The court erred because she was not advised that the immigration consequences were mandatory. (People v. Patterson, supra, 2 Cal.5th at pp. 889, 895; People v. Espinoza, supra, 27 Cal.App.5th at pp. 916-917.)
In summary, Ruiz‘s 1991 advisement was not valid, her counsel moved to set aside the plea on the wrong ground, and the trial court erred in ruling she was properly advised. (
The Right to Bring a Motion in 2019 Under Section 1473.7
In 2018, the Legislature passed Assembly Bill No. 2867 to modify
Thus, in 2017, when Ruiz‘s first motion was denied, defendants seeking to pursue
The 2019 amendment made another significant change. After 2017, a defendant could prevail only on judicially created findings. The “grounds for the motions” were not included in the statute. (Sen. Com. on Public Safety, Rep. on Assem. Bill No. 2867 (2017-2018 Reg. Sess.) June 12, 2018, p. 4.) The 2019 amendment corrected this problem by eliminating these judicially created grounds. The new statute provides that in ruling on a motion, ”the only finding that the court is required to make is whether the conviction 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 . . . .” (
Prior to the 2019 amendments, courts denied motions brought under
The California Legislature knew defendants, like Ruiz, had been misadvised on immigration consequences, yet they were losing
On January 9, 2019, Ruiz filed her motion based on the new law (
Collateral Estoppel
The trial court erred in ruling that Ruiz‘s 2019 motion, brought after the amendments to
The People objected to Ruiz‘s 2019 motion because her prior 2017 motion contained two brief references to
Ruiz claimed the 2017 motion briefly cited, among other things,
The trial court agreed with the People‘s position. It indicated that Ruiz should have filed a motion for reconsideration in 2017 and it lacked jurisdiction at this time to consider her motion.
But Ruiz could not file a motion under the newly enacted version of
The trial court agreed with the People‘s claim that allowing Ruiz to proceed with her current 2019 motion would give her a second bite of the apple to challenge her counsel‘s mistake that occurred in 1991.
But this is a different apple. The new 2019 law provides a different standard for challenging and prevailing based on immigration advisement errors. Because it involves different issues than Ruiz‘s prior motion, Ruiz‘s current motion is not barred by collateral estoppel. (Jackson v. City of Sacramento (1981) 117 Cal.App.3d 596, 602-603 [collateral estoppel does not apply where the issues in the prior proceeding are not identical to the current issues]; California Hospital Assn. v. Maxwell-Jolly (2010) 188 Cal.App.4th 559, 572 [” ‘It is . . . well established that when the proceeding in which issue preclusion is currently sought involves different substantive law than the previous proceeding, collateral estoppel does not apply’ “]; Powers v. Floersheim (1967) 256 Cal.App.2d 223, 230 [“Collateral estoppel is not applicable to the decision of a mixed question of fact and law, particularly if there has been an intervening change in the law” (italics added)].) Nor is the collateral estoppel doctrine applied ” ’ “if injustice would result or if the public interest requires that relitigation not be foreclosed.” ’ ” (Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 257.)
Moreover, as applied to criminal cases, “the policies underlying collateral estoppel are far outweighed by other policies which are vindicated by affording petitioner a trial de novo.” (Gutierrez v. Superior Court (1994) 24 Cal.App.4th 153, 170.) The Legislature did not intend that motions brought under the new statutory standard would be denied because courts had denied earlier motions to vacate brought on different grounds. (See, e.g., People v. Ogunmowo (2018) 23 Cal.App.5th 67, 70, fn. 2, 80 [the court denied motions to vacate a 1989 conviction in 2009 and 2014 with a finding it had advised defendant about “possible immigration consequences,” but defendant later prevailed on a
The changes the Legislature made in 2019 were intended to retroactively target convictions based on the type of inadequate immigration advisements that occurred in this case. The legislative declarations indicate the remedial goal of the new law: “The State of California has an interest in ensuring that a person prosecuted in state court does not suffer penalties or adverse consequences as a result of a legally invalid conviction.” (People v. Camacho, supra, 32 Cal.App.5th at p. 1007.) Courts have the authority to provide relief for those subject to such convictions. (People v. Glimps (1979) 92 Cal.App.3d 315, 321 [the trial court “has full power to vacate a void order without an application on the part of anyone“].) Preventing Ruiz from having a hearing on the merits of her motion would undermine the new law‘s legislative intent and would condone a facially invalid advisement without providing a remedy for relief. “[A] statute should not be construed as creating a right without a remedy.” (Silberman v. Swoap (1975) 50 Cal.App.3d 568, 571.)
DISPOSITION
The order is reversed, and the matter is remanded to the trial court with instructions to hear and consider Ruiz‘s motion to vacate her prior conviction on its merits.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
I concur:
PERREN, J.
YEGAN, J., DISSENTING:
About thirty years ago, appellant entered into a negotiated disposition of her criminal case. She avoided prison. Now she seeks to vacate the conviction altogether because the federal government seeks to impose an adverse immigration consequence. With the aid of a new statute (
The Legislature and the Supreme Court have shown concern with the defendant‘s rights at the time of a guilty plea. But the People of the State of California have rights too. These rights must be considered in the equation. If appellant is successful in vacating her plea, how are the People going to prove a thirty-year-old narcotics case? The present state of the law not only prejudices the People, it may allow an unfair result which has absolutely nothing to do with guilt or innocence. This devalues the work of the superior court when it took and accepted the negotiated disposition. If successful, and if the People cannot now prove the case, appellant has, in legal contemplation, never been convicted and is not subject to immigration consequences. This will certainly be a surprise ending for this criminal action.
To be sure, at the time of the plea, the superior court advised appellant that the plea “may have the consequence of deportation . . . .” There was no admonition that she “will” be deported as is now apparently required. There is a good reason for the former advice: no one could have predicted then that the federal government would immediately and/or automatically deport her. Now the tail is wagging the dog and immigration consequences jeopardize an otherwise legally sufficient final judgment. Moreover, had the trial court advised appellant that she “will” be deported, that would have been erroneous. How can I so conclude? She was not then deported and apparently quietly lived in the United States for thirty years!
The rules regarding retroactivity of a newly announced rules of criminal procedures are well known and need not be repeated. (See, e.g., the scholarly opinion of Justice Bedsworth in In re Ruedas (2018) 23 Cal.App.5th 777, analyzing and applying the seminal case of Teague v. Lane (1989) 489 U.S. 288.)
The sanctity of a thirty-year-old superior court final judgment should not be sacrificed. There are rules curtailing collateral attack on criminal judgments. A defendant cannot sleep on asserted rights and he or she must timely assert them. (E.g., In re Robbins (1998) 18 Cal.4th 770, 778; In re Clark (1993) 5 Cal.4th 750, 759.) This rule should bar the relief here sought. The Legislature should not alter the timeliness rule. Now it is obvious why appellant is attacking the plea and I have some sympathy for her. She may well have been a model citizen after her 1991 crime. But there is another way to look at this. If she should
Finally, if the majority is correct, there are undoubtedly many similarly situated defendants who will seek relief. There is an irony here which must be noted. The defendants with federal immigration problems may have their convictions “erased” and the defendants who are lawfully in the United States will remain convicted.
For the above reasons, I must respectfully dissent.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
Steven D. Blades, Judge
Superior Court County of Los Angeles
Gary Finn, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.