THE PEOPLE, Plaintiff and Respondent, v. RAMIRO TAPIA, Defendant and Appellant.
F075475 (Super. Ct. No. MCR44769A)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 8/31/18
CERTIFIED FOR PUBLICATION
OPINION
APPEAL from an order of the Superior Court of Madera County. Joseph A. Soldani, Judge.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys
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INTRODUCTION
Appellant Ramiro Tapia pled no contest in 2012 to one count of violating
FACTUAL AND PROCEDURAL SUMMARY
Because Tapia pled no contest to the offenses, we take the facts of the offenses from the probation report. On October 25, 2012, law enforcement officers from the Madera County Narcotic Enforcement Team, Madera Sheriff‘s Department, and Madera Police Department Response Unit executed search warrants at Tapia‘s residence on Road 26 and at a second location on Ellis Street.
At the Ellis Street property, officers found 143 live marijuana plants. There were three medical marijuana cards, including one for Tapia, that purported to allow 90 live plants and six pounds of processed marijuana for each card holder. Inside a wooden shed on the property were portions of marijuana plants hanging by strings and a large bucket containing freshly cut marijuana plants. In a trailer on the property, officers found a handgun and a shotgun; the shotgun had been reported stolen in Watsonville. The trailer also was being used as a location to dry marijuana.
According to Tapia‘s brother, the marijuana was grown at the Ellis Street property and then taken to Tapia‘s residence on Road 26. Tapia was present when officers arrived to execute the warrant at the Road 26 propеrty. Officers found the garage of the residence had been converted to a marijuana processing center. Among the items in the converted garage were six pounds of marijuana and Reynolds plastic oven bags. Six individuals were in the
After being advised of his rights and waiving those rights, Tapia spoke with officers. He admitted the residence was his, and he was aware of the processing center in the garage. He hired the individuals in the garage to work for him clipping and packaging marijuana; he paid them in marijuana. The total weight of the marijuana recovered from the Ellis Street and Road 26 properties was 760 pounds.
A criminal complaint was filed against Tapia and codefendants on October 29, 2012. As to Tapia, the complaint alleged violations of
On November 15, 2012, Tapia was before the trial court. At the commencement of that hearing, defense counsel Craig Collins noted Tapia was “considering the offer,” presumably a plea offer from the People. Collins stated Tapia was a legal permanent resident оf the United States and “I want to just see how this would affect his status therein.” The trial court trailed the matter to later that morning and told Collins, “just let me know when you‘re ready to proceed.” The trial court also offered to put the matter over to another day.
After a passage of time, the matter was back on the record. Collins stated Tapia was being assisted by the Spanish-language interpreter and would be pleading to one count of conspiracy in violation of
in violation of
The trial court inquired about the “plea form,” and Collins stated the Spanish interpreter had assisted Tapia with filling out the form. The plea form, entitled “Declaration Regarding Guilty Plea,” bears the signatures of Tapia, the Spanish interpreter, and defense attorney Collins.
The plea form includes the statement that Tapia‘s attorney had explained the consequences of the plea to him and “if not a citizen, my plea may have the consequence of my deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States.” Tapia initialed this stаtement. Above Tapia‘s signature at the end of the form, it states he has read each item on the form, discussed it with his attorney, and understands each item; his initials by each item is proof thereof.
“[D]o you understand, also, if you‘re not a citizen of the United States and you enter a plea of guilty or no contest, it will result in your being deported to your country of origin and never being allowed to legally return to this country and never being allowed to become a legal citizen of this country. [¶] Do you understand this?
“[TAPIA]: Yes.” (Italics added.)
Tapia pled as agreed and the trial court ordered a probation report prepared. The probation officer noted Tapia had a prior conviction for battery. When the probation report was prepared in December 2012, Tapia was 43 years old. He informed the probation officer that he was a citizen of Mexico, he had graduated high school in Mexico, and he had completed one semester at the University of Guadalajara in Mexico. There were no holds, immigration or othеrwise, identified by the probation office.
Three circumstances in aggravation were identified by the probation officer pursuant to
Tapia was sentenced in accordance with the plea agreement on December 13, 2012.
On January 24, 2017, Tapia filed a motion pursuant to
Tapia argued that had he known he was barred from reentry or subject to deportation under
Among the multiple exhibits attached to the
brother and codefendant states Tapia was not involved in the marijuana cultivation and packaging operation.
The People filed written opposition to the
Collins declared he anticipated Tapia would be convicted оn all charges had he gone to trial. Tapia was considering the People‘s original offer, so Collins asked to trail the case to discuss with Tapia “the immigration issues involving the plea bargain.” Collins averred he negotiated the best resolution possible, considering the facts and the People‘s position on the matter; the charge pertaining to sales or distribution of marijuana was struck.
Collins stated he advised Tapia, with the use of a Spanish-language interpreter, the plea would expose him “to deportation proceedings and other negative consequences.” Collins declared it was his “custom and practice” with clients in Tapia‘s position to state the negative consequences included “loss of permanent resident status, preclusion from citizenship and prevention of reentry.”
Furthermore, Collins stated he could not specifically recall, but it would have been unusual for Tapia to have an immigration hold at that time. Collins advised Tapia immigration officials could place a hold on him any day, and although Tapia still faced deportation if out of custody, the chance of such proceedings decreased if Tapia was out of custody. Collins negotiated a plea bargain allowing Tapia to be released from custody quickly.
Tapia filed a reply to the opposition. In the reply, he maintained he was not advised of the specific immigration consequences of his plea nor told his plea would expose him to certain deportation.
A hearing was held on the
Tapia should be allowed to withdraw his plea. With respect to immigration consequences, Tapia‘s counsel argued that when a defendant enters a plea, “thеre‘s a heightened duty of [defense] counsel to make it abundantly clear.” Counsel also argued Tapia should have been told “there‘s no ‘might’ about it.”
The trial court stated it had read the transcript of the plea hearing and Tapia “was right there and I was right here.” The trial court had told Tapia, “you leave the country, you‘re not going to be allowed back.” The trial court also stated it had told Tapia “you‘re going to be deported, you‘re not going to be allowed to come back to this country, and you‘re not going to become a legal citizen” and Tapia stated he “understood that.”
The trial court also stated counsel‘s argument was Tapia “really didn‘t have any information and that‘s why he left the country. He had that information.” The trial court opined, “Sometimes we do things” thinking “we‘re not going to get caught.”
The People argued Tapia was “advised on the record” by the trial court as to immigration consequences and Tapia was advised by Collins of specific immigration consequences as set forth in his declaration. The People argued Tapia knew the consequences when he left the United States, and he did so believing he would “not be apprehended or he just chose to disregard his counsel‘s advice.”
The trial court stated it had reviewed and taken into consideration “the moving papers and the declarations and the Court‘s file, the plea declaration and the motions and responses and responses to responses.” The trial court found Tapia‘s defense attorney, Collins, was “very competent” and had advised Tapia of the immigration consequences.
The trial court denied the
Tapia filed an appeal on April 10, 2017.
DISCUSSION
Tapia argues the failure of defense counsel to advise him of the “precise … immigration consequences” and the failure to negotiate an “immigration-safe” plea provides sufficient basis for granting his
“(a) A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence for either of the following reasons:
“(1) The conviction or sentence is legally invalid due to a 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.
“(2) Newly 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.” (
§ 1473.7, subd. (a) .)
The statute further provides that all motions “shall be entitled to a hearing.” (
after the effective date of the statute.” (Ibid.) Consequently, although Tapia entered his plea in 2012, he may seek to avail himself of the relief afforded by
A motion asserting grounds for relief pursuant to
“(1) The date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal.
“(2) The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final. (
§ 1473.7, subd. (b) .)
Here, Tapia was placed on formal probation for five years on December 13,
Standard of Review
Tapia does not directly address the appropriate standard of review for a
“De novo review is the appropriate standard for a mixed question of fact and law that implicates a defendant‘s constitutional right. (People v. Cromer (2001) 24 Cal.4th 889, 899–902.) A defendant‘s claim that he or she was deprived of the constitutional right to effeсtive assistance of counsel ‘presents a mixed question of fact and law,’ and we accordingly review such question independently. (In re Resendiz (2001) 25 Cal.4th 230, 248, abrogated in part on other grounds in Padilla v. Kentucky (2010) 559 U.S. 356, 370.) We accord deference to the trial court‘s factual determinations if supported by substantial evidence in the record, but exercise our independent judgment in deciding whether the facts demonstrate trial counsel‘s deficient performance and resulting prejudice to the defendant. (In re Resendiz, supra, 25 Cal.4th at p. 249.)” (People v. Ogunmowo, supra, 23 Cal.App.5th at p. 76.)
We apply this de novo standard of review in assessing the trial court‘s denial of Tapia‘s
An immigrant convicted of an aggravated felony at any time after admission to the United States is deportable. (See
In Padilla v. Kentucky, supra, 559 U.S. 356, the United States Supreme Court held the Sixth Amendment guarantee to the effective assistance of counsel requires an attorney to advise his or her client of the potential deportation consequences of the plea, and the two-part test of deficient performance and prejudice articulated in Strickland v. Washington (1984) 466 U.S. 668 applied to the claim. (Padilla, supra, at p. 366.) In Padilla, trial counsel failed to advise the defendant he would face deportation if he pled guilty to transporting a large quantity of marijuana and instead erroneously advised the
defendant he “‘“‘did not have to worry about immigration status since he had been in the country so long.“‘“’ (Id. at p. 359.)
We turn now to the specific advisements given to Tapia before he entered his no contest plea.
Specific Advisements to Tapia
Tapia contends he was not advised of the precise immigration consequences of his plea. The trial court found otherwise, and the evidence supports the trial court‘s finding.
We defer to the trial court‘s factual findings if supported by substantial evidence. (People v. Ogunmowo, supra, 23 Cal.App.5th at p. 76; People v. Olvera, supra, 24 Cal.App.5th at p. 1116.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We do not reweigh the evidence or reevaluate witness credibility. (People v. D‘Arcy (2010) 48 Cal.4th 257, 293.)
Although the focus of Tapia‘s motion is not the trial court‘s advisement of immigration consequences, we address that advisement in the context of assessing whether substantial evidence supports the trial court‘s finding Tapia was advised of the actual immigration consequences before entering his plеa. The trial court provided the advisement required by
“One of the purposes of the
trial court his plea would lead to his deportation and denial of readmission to the United States, Tapia did not request more time to speak with counsel or further consider the appropriateness of entering a plea. (
The record and the declaration of Collins disclose Tapia had no need for a further conversation with defense attorney Collins after the trial court‘s
After Collins made the statement about verifying the effect the plea bargain would have on Tapia‘s legal resident status, the trial court agreed to trail or continue the matter. The matter trailed, during which Collins spoke with his client, Tapia. Collins states in his declaration he specifically advised Tapia the negotiated disposition “exposed him to deportation proceedings and other negative consequences. These would include loss of permanent resident status, preclusion from citizenship and prevention of reentry, as this was my custom and practice in situations similar to … Tapia‘s.” Collins further stated in his declaration he believed he advised Tapia that immigration officials “could put a hold on him any day, and although he still faced deportation out of custody, the chances of such proceedings decreased when not in jail.”
Tapia was assisted by a Spanish-language interpreter when he spoke with Collins about the immigration consequences. A Spanish-language interpreter was used when Tapia signed the Declaration Regarding Guilty Plea and during the hearing where he received immigration advisements and entered his plea. The record therefore discloses
Tapia had the means to clearly
In People v. Olvera, supra, 24 Cal.App.5th 1112, the defendant signed a plea advisement that stated he assumed his plea “‘will, now or later, result in my deportation, exclusion from admission or readmission.‘” (Id. at p. 1115.) The defendant pled to an aggravated felony. (Ibid.) The appellate court upheld the denial of his
Both in his motion and his declaration, Tapia emphasizes he was not told he was pleading to an “aggravated felony,” apparently because that specific term was not used. Whether the offense to which Tapia pled is classified by the federal government as an aggravated felony is not a consequence of the plea; it is simply a legal classification for certain offenses. The consequence of the plea is that the charge to which Tapia pled would lead to his deportation and would bar him from reentry if he left the Unitеd States, and Tapia was advised of these consequences.
The only evidence he was not advised of the specific immigration consequences of his plea is Tapia‘s own self-serving declaration, claiming he was not told of the immigration consequences. The trial court implicitly found Tapia‘s declaration not credible, considering the comment by Collins reflected in the reporter‘s transcript that Collins needed some time to determine the effect of the plea bargain on Tapia‘s legal permanent resident status and Collins‘s declaration as to the substance оf his off-the-record discussion with Tapia about immigration consequences. This exchange is in
addition to the trial court‘s advisement. We do not reevaluate witness credibility. (People v. D‘Arcy, supra, 48 Cal.4th at p. 293.)