People v. Maldonado CA2/8 ( 2021 )

Filed 6/25/21 P. v. Maldonado CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B307089
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA106453)
v.
IRVIN DAVID MALDONADO
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. James D. Otto, Judge. Affirmed.
Douglas J. Jalaie, Esq., for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
In 2019, appellant Irvin D. Maldonado filed a motion to
vacate his 2017 conviction of lewd acts on a child under the age
of 14. Maldonado claimed his attorney failed to advise him about
the adverse immigration consequences of taking the plea deal.
Appellant also claimed to have new evidence of actual innocence
in that the child recanted her allegations against him. The trial
court denied appellant’s motion.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. 2017 Felony Conviction of Lewd Act upon a Child
On May 17, 2017, the People filed a felony complaint
against appellant, charging him with 10 counts of committing a
lewd act upon a child under the age of 14, in violation of Penal
Code1 section 288, subdivision (a). The named victim is his
stepdaughter Vanessa D. (Vanessa).
We glean from the probation officer’s report that Vanessa
told her grandmother she was being molested by her stepfather;
grandmother then took Vanessa to the police. Vanessa reported
that when she was eight years old, she “was sleeping and
awaken[ed] to her stepfather touching her vagina with his
fingers.” She was “afraid” and pretended to be asleep, and he
continued to fondle her for 40 minutes. He had shown her his
penis several times and had masturbated in front of her. She
said he “touched her butt and put his fingers in her rectum.” She
also said he had showed her movies of “two girls having sex.”
1 Further undesignated statutory references are to the Penal
Code.
2
Vanessa, now age 10, reported the abuse continued to take place.
She had cried and asked appellant to stop, but appellant told her
“not to tell anyone.”
The police interviewed appellant, who “initially denied his
actions, but later admitted” Vanessa had touched his penis, and
he had touched her buttocks and “penetrated the lips of her
vagina with his fingernail tips.” He admitted this happened on
numerous occasions.
On August 31, 2017, appellant, represented by counsel
Adrian Woodward, pleaded no contest to two counts of
committing a lewd act upon a child. He was sentenced to three
years in prison.
We have not been provided with a copy of the court’s
minute order or the reporter’s transcript of the plea that took
place on August 31, 2017. As a result, we do not have a record of
any advisements or discussions about immigration consequences
that may have been given at the plea.
II. 2019 Motion to Vacate the 2017 Conviction
On October 11, 2019, appellant, with new counsel Jerome
Haig (Haig), filed a motion to vacate his 2017 conviction pursuant
to section 1473.7. Appellant alleged that his “prior counsel
Adrian Woodward never discussed the immigration consequences
of the plea agreement” and “never told [appellant] that he would
be deported if he accepted the plea offer.” Appellant argued his
former counsel’s “deficiencies” constituted ineffective assistance
of counsel and damaged his ability to meaningfully understand
and defend against the immigration consequences of his plea.
Appellant further alleged to have newly discovered evidence of
actual innocence because Vanessa, one year earlier, had recanted
her accusations and told defense counsel Woodward that she had
3
lied to the police. Appellant argued his former counsel’s deficient
representation and the existence of newly obtained evidence of
innocence constituted grounds to vacate his 2017 conviction.
In support of his motion, appellant submitted three sworn
declarations: one from former counsel Woodward, one from
Vanessa, and his own.
Appellant’s sworn declaration set out the following facts.
Appellant was born in Mexico and came to the United States with
his parents when he was about one year old. He is now a legal
permanent resident. Although appellant completed his sentence
in July 2019 and was released on parole, he was detained by the
United States Immigration and Customs Enforcement (ICE) and
placed in removal/deportation proceedings as a result of his 2017
conviction. (He was in immigration detention when he filed the
motion and consequently did not attend the hearing.)
Appellant asserted he pleaded no contest on August 31,
2017 because Woodward told him he “had no chance to prevail at
trial” as the jury would believe Vanessa and not him. Woodward
told him he “would receive much more time, likely the maximum
sentence . . . in excess of 30 years” if he went to trial, but that he
would serve only 18 months if he took the prosecution’s offer of
three years. Appellant stated he “would not have pleaded no
contest had [he] known that Vanessa had told the truth about
what occurred – that [he] never sexually assaulted her.”
Next, appellant asserted Woodward “never mentioned
anything about the immigration consequences of pleading no
contest” and never said he would be deported if he accepted the
plea offer. Appellant further asserted had he known he would be
subject to deportation, he would not have pleaded no contest and
“[i]nstead . . . would have fought the charges.”
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Vanessa—then 13 years old and in the 7th grade—provided
the following in her declaration:
“In 2017, I started telling lies about my step-father. I told
the police that he touched me in private parts of my body, showed
me his penis, asked me to pull down my pants, and other sexual
things. [¶] I lied to the police about all the things that I told
them about my step-father. The truth is that my step-father . . .
never touched me in any sexual way, never exposed his private
parts or penis to me, never asked me to undress, or show him any
part of my body. [¶] I lied to the police because I was upset that
my step-father was spending too much time with my family and
my mother. I was also mad at my step-father because he was too
strict with me. He made me do my homework before fun things
like video games.”
After appellant went to jail, Vanessa felt “very badly about
lying” and decided to tell appellant’s counsel Woodward that she
had lied to the police. Vanessa asserted her mother “has never
put any pressure on me to say that I lied to the police two years
ago. I am doing this on my own.”
In his declaration Woodward set out that he represented
appellant in the underlying criminal case. Woodward “received
no discovery or evidence undermining the credibility of the
prosecution’s case” during his representation of appellant.
Woodward “personally interviewed” Vanessa, who “reiterated the
facts in the police reports” and “never recanted.” After
interviewing Vanessa, Woodward recommended that appellant
accept the prosecution’s plea agreement. Appellant took
Woodward’s advice and accepted the offer.
After the case closed, Vanessa came to Woodward’s office
and he re-interviewed her alone. She told him she “lied to the
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police and that [appellant] had never touched her in any
inappropriate or sexual manner.” She admitted she “had done a
bad thing making up this story.” As a result, Woodward alerted
the deputy D.A., sending a letter about Vanessa’s recantation.
Woodward was told “there was nothing [the D.A.’s] office would
do to reverse the conviction, reopen the investigation, or re-
interview Vanessa.” Woodward asserted he “would never have
recommended that [appellant] plead guilty or no contest to any
offense” had he known Vanessa intended to recant and state that
appellant “was factually innocent of all the charges.”
On March 10, 2020, the People filed their opposition to
appellant’s motion. They asserted the D.A. recited the
immigration consequences during the plea colloquy and had
asked appellant whether he discussed the immigration
consequences with his lawyer; appellant had answered in the
affirmative. The People argued appellant did not state sufficient
facts to demonstrate he was prejudiced by any alleged
incompetence of counsel. They argued appellant failed to present
any independent evidence to corroborate his own declaration that
he would have rejected the plea offer but for Woodward’s lack of
advice. The People argue the disparity in sentencing between the
terms of the plea agreement (3 years) and appellant’s maximum
exposure (26 years) was significant; it “stands to reason that [he]
accepted the people’s offer in order to avoid the substantial state
prison exposure.”
Finally, the People argued “it is not uncommon for victims
to recant in order to protect their abuser” and it is “not
particularly surprising in this case given the fact that victim’s
own mother has always been on [appellant’s] side.” They argued
the recantation and its timing is “suspect” given the pending
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deportation proceedings. The People noted appellant had
previously “admitted to touching victim’s butt, vagina, and
putting his finger on her vagina.”
On June 22, 2020, appellant replied to the People’s
opposition. He argued he would have never “accepted a
disposition . . . knowing that he would be permanently separated
from his family, his wife, his child, and his homeland.” He has
lived his whole life in the United States since arriving with his
parents when he was 11 months old.
In reply, he submitted three more declarations: one from
Zoila Lomeli, appellant’s older sister; one from Katie Siler,
appellant’s immigration attorney; and one from his current
counsel, Haig.
Zoila Lomeli stated appellant’s “whole family lives in this
country—our parents, siblings, grandmother, aunts, uncles, and
cousins” whereas there is “only one relative, an aunt, who resides
in Mexico.” Zoila stated she was present during the August 31,
2017 hearing and recalled a conversation with Woodward in the
hallway outside the courtroom, where he explained the plea.
Based upon what Woodward said in the hallway, Zoila felt her
brother had no choice but to accept the plea offer and she told
Woodward to tell appellant to “take the deal. A few minutes
later, [appellant] accepted the plea deal.” Zoila stated she was
never told by Woodward about the possibility that appellant
“would be deported based upon this case.”
Katie Siler provided the following information. Appellant
is a citizen of Mexico who came to the U.S. in 1989 when he was
11 months old. He became a lawful permanent resident in
January 2016 through his citizen wife’s visa petition. Appellant’s
2017 conviction constituted an aggravated felony which made
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him deportable and ineligible for relief from deportation. If
appellant were ordered deported, he would be barred from
returning to the United States for at least 10 years. “As an
immigration attorney, if [Siler] had been consulted prior to”
appellant pleading no contest to the crime of lewd act upon a
child, she “would have advised him not to enter such a plea
because it is an aggravated felony and would make him
deportable.”
Haig declared that to prepare for this case, he requested
and received Woodward’s case file. While reviewing the file, Haig
noted photos and videos were missing. Haig contacted
Woodward, who said he did not have electronic evidence. Haig
found “only two pages of attorney notes” and nothing in the file
about appellant’s immigration status, any negotiation for an
immigration-neutral disposition or any immigration advisements.
Based on his review of the file and discussions with Woodward,
Haig believed “it is clear [Woodward] did not know and
appreciate the [e]ffect of a Penal Code § 288(a) conviction on
[appellant’s] immigration status.” Haig asserted he would have
consulted with an immigration attorney, educated himself on the
particulars of appellant’s immigration status, and sought an
immigration-neutral disposition.
On July 17, 2020, Woodward submitted another sworn
declaration with the following information. Woodward “believe[d]
it was in [appellant’s] best interest” to enter into a plea with the
D.A. based on his “investigations and discussions.” Vanessa
approached him about recanting her testimony at “a date
subsequent to the plea” and after appellant was already “serving
his time.” Woodward asked the D.A. to review Vanessa’s new
8
information but was informed they “would not consent to a
withdrawal of the plea.”
Further, Woodward recalled appellant was advised of his
immigration consequences during the sentencing hearing in
2017. “Due to the passage of time,” Woodward did not recall any
specific discussion with appellant in 2017 regarding immigration
issues, but explained it is his “practice to advise all of [his]
client[s] of their immigration consequences when facing a felony
conviction.” Woodward was aware a conviction of this type of
charge may result in deportation.
III. Hearing and Ruling on Motion to Vacate
The contested hearing on appellant’s motion took place on
July 17, 2020. The court took judicial notice of the plea and
sentencing transcript; however, the record before us does not
include a copy of that transcript.
Three witnesses testified.
Woodward: Woodward has been an attorney since 1995.
He was retained by appellant’s family in May 2017. Prior to
being retained in appellant’s case, Woodward had handled about
20 section 288 child molestation cases. He had interviewed
Vanessa on two separate occasions prior to the plea hearing date.
He recalled meeting with the prosecutor about this case “at
least three times, maybe more.” He recalled receiving an “initial
offer” sometime in April or May of 2017. The “earlier offer . . .
was substantially different”, somewhere around six years in state
prison. Woodward offered the prosecutor a misdemeanor plea on
appellant’s behalf, but it was rejected. Instead, the prosecutor
offered five years in state prison for two counts. Woodward made
a counteroffer of three years in state prison, which was accepted.
9
Woodward recalled multiple occasions when he spoke with
appellant. Woodward “believe[d]” appellant “had relayed to [him]
that he was . . . on a Green Card” and was a “legal resident.”
After learning appellant was not a U.S. citizen, Woodward had a
discussion about immigration-neutral resolutions with “one of
[his] P.O.’s” and with an immigration lawyer. He “did discuss
immigration consequences . . . if [his] memory serves [him]
correctly.” It was Woodward’s practice to advise that felony
convictions could have immigration consequences. He also
recalled having “some discussion regarding immigration status”
with the prosecutor.
After the case was closed, Woodward was contacted by
Vanessa’s mother (appellant’s wife). Vanessa thereafter came to
see Woodward at his office accompanied by her mother.
Vanessa: Vanessa, now 13, was about 10 years old when
the 2017 proceedings took place. She confirmed she told police
officers in March 2017 that appellant touched her vagina and
butt, took photos of her private parts, and showed her
pornography. She confirmed repeating the same allegations
when she was interviewed at UCLA in April 2017, where she also
reported appellant took nude photos of her with his cell phone.
She confirmed repeating these allegations during the two
interviews conducted by Woodward.
She decided to come “forward to just tell the truth” a year
after sentencing because of a few Law & Order episodes she
watched on TV. She told her mother the truth. Appellant never
touched her in a sexual way, never showed her any pornography,
and never pulled down clothing to expose body parts.
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Vanessa testified she and her mother have never discussed
this case since she initially reported the incident to police officers.
She confirmed her mother drove her to court for the hearing.
Zoila: Zoila, appellant’s sister, was present during the
proceedings held August 31, 2017. She recalled Woodward never
raised the issue of appellant’s immigration status as a topic of
discussion while talking to her and the family. She admitted she
was not in the attorney room with Woodward and appellant when
they were having discussions with one another. She was present
in the courtroom when the prosecutor “advised [her] brother that
‘if you are not a citizen, your plea will result in your deportation,
denial of naturalization, denial of amnesty or denial of re-entry’
and also asked him, ‘have you discussed the immigration
consequences with your attorney . . . ?’ and [her] brother
answered ‘yes.’ ”
On July 29, 2020, the trial court issued its ruling, denying
the motion to vacate. The court found appellant did not prove by
a preponderance of the evidence that he was prejudiced by his
former counsel’s alleged errors. The court also found Woodward’s
representation did not fall below an objective standard of
reasonableness under the prevailing professional norm. The
court found: “The plea transcript supports Mr. Woodward’s
recollection that he advised [appellant] of the immigration
consequences.” The court referred to specific testimony made by
Woodward and found “Woodward did consult immigration
counsel and did try to reach an immigration neutral disposition.”
The court specifically found Woodward’s testimony “more
credible” as appellant’s declaration “is inconsistent with the
statement he made at the time of his plea regarding being
11
advised of immigration consequences and his statements to law
enforcement.”
As to Vanessa’s recantation, the court did “not find her new
testimony credible” and found her “inconsistent . . . as to whether
she told her mother that she was going to Mr. Woodward’s office
to discuss her prior statements to him.” The court found the
reasons Vanessa gave for recanting “just not credible.”
Appellant timely appealed.
DISCUSSION
Appellant contends his conviction must be vacated because
his prior counsel Woodward failed to advise him of the
immigration consequences of his plea and failed to pursue an
immigration-neutral disposition. He argues he was “heavily
prejudiced” by Woodward’s errors. Appellant also contends
Vanessa’s “recanting testimony was newly discovered evidence of
actual innocence that required vacation” of his 2017 conviction.
I. Applicable Law
Mandatory deportation from the United States is an
immigration consequence when a defendant is convicted of a
crime deemed an aggravated felony under federal immigration
law. (Moncrieffe v. Holder (2013) 569 U.S. 184, 187–188; 8 U.S.C.
§ 1228(c) [aggravated felony is conclusively presumed
deportable].) With respect to appellant’s case, a violation of
section 288, subdivision (a), constitutes an aggravated felony that
is a deportable offense under federal law. (8 U.S.C.
§ 1227(a)(2)(A)(iii) [“Any alien who is convicted of an aggravated
felony at any time after admission is deportable”]; 8 U.S.C.
§ 1101(a)(43)(A) [aggravated felony included “sexual abuse of a
minor”].)
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Section 1473.7 authorizes a person who is no longer in
criminal custody to move to vacate a conviction or sentence for
any of the following reasons: “(1) The 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. . . . [¶]
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, subds. (a)(1), (2).)
“Ineffective assistance of counsel that damages a
defendant’s ability to meaningfully understand, defend against,
or knowingly accept the actual or potential adverse immigration
consequences of a guilty plea, if established by a preponderance
of the evidence, is the type of error that entitles the defendant to
relief under section 1473.7. [Citation.] To establish ineffective
assistance of counsel, a defendant must demonstrate that his
counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms and that he
was prejudiced by the deficient performance.” (People v.
Ogunmowo (2018) 23 Cal.App.5th 67, 75; see Strickland v.
Washington (1984) 466 U.S. 668 (Strickland).)
Effective January 1, 2019, the Legislature amended section
1473.7 to clarify that a “finding of legal invalidity may, but need
not, include a finding of ineffective assistance of counsel.”
(§ 1473.7, subd. (a)(1).) Therefore, a defendant asserting errors
by counsel need not establish the elements of a claim for
ineffective assistance of counsel. (People v. Camacho (2019)
32 Cal.App.5th 998, 1008.) Instead, a defendant seeking relief
via a motion under section 1473.7 must show prejudicial error
13
which is “not limited to the Strickland test of prejudice, whether
there was reasonable probability of a different outcome in the
original proceedings absent the error.” (Id. at p. 1009.) To
establish prejudice, a defendant must show by a preponderance of
the evidence that he would not have entered the plea and would
have risked going to trial had he known about the adverse
immigration consequences. (Id. at pp. 1010–1011; see People v.
Martinez (2013) 57 Cal.4th 555, 565 (Martinez) [defendant may
show prejudice by “convinc[ing] the court [that he] would have
chosen to lose the benefits of the plea bargain despite the
possibility or probability deportation would nonetheless follow”];
see Lee v. U.S. (2017) 137 S.Ct. 1958, 1965 [a defendant can show
prejudice by demonstrating a reasonable probability he would not
have pled guilty and would have insisted on going to trial but for
counsel’s errors].)
II. Standard of Review
The California Supreme Court recently determined the
standard of review for section 1473.7 motion proceedings.
In People v. Vivar (2021) 11 Cal.5th 510 (Vivar), the Court
endorsed the independent standard of review. (Id. at p. 524.)
Under independent review, an appellate court exercises its
independent judgment to determine whether the facts satisfy the
rule of law. (Id. at p. 527.) When courts engage in independent
review, they should be mindful that independent review is not
the equivalent of de novo review. (Ibid.) An appellate court may
not simply second-guess factual findings that are based on the
trial court’s own observations. (Ibid.) Factual determinations
that are based on the credibility of witnesses the trial court heard
and observed are entitled to particular deference, even though
courts reviewing such claims generally may reach a different
14
conclusion from the trial court on an independent examination of
the evidence even where the evidence is conflicting. (Ibid.) In
section 1473.7 motion proceedings, “appellate courts should
similarly give particular deference to factual findings based on
the trial court’s personal observations of witnesses.” (Id. at
pp. 527–528.) Where the facts derive entirely from written
declarations and other documents, however, there is no reason to
conclude the trial court has the same special purchase on the
question at issue; as a practical matter, the trial court and this
court are in the same position in interpreting written
declarations when reviewing a cold record in a section 1473.7
proceeding. (Id. at p. 528.) Ultimately it is for the appellate
court to decide, based on its independent judgment, whether the
facts establish prejudice under section 1473.7. (Ibid.)
III. Analysis
As a preliminary matter, we note appellant has failed to
provide us with a reporter’s transcript of the August 31, 2017
plea and sentencing hearing—of which the trial court had taken
judicial notice and which both parties refer to and rely on in their
pleadings below. As a result, we do not know exactly what the
trial court said with respect to immigration consequences.
However, we find Woodward’s July 17, 2020 declaration (where
he recalled appellant was advised of the immigration
consequences at the August 31, 2017 hearing) and Zoila’s
testimony in court (that she heard the prosecutor give
immigration advisements to appellant during the August 31,
2017 hearing and heard appellant say “yes”), adequately
substitute for the actual transcript of the August 31, 2017
hearing. We proceed on the evidence that the trial court advised
15
appellant that he would be deported based on the charges to
which he was pleading no contest.
We also accept the proposition that Woodward incorrectly
advised appellant that he could be deported rather than correctly
telling him he would be deported based on the plea and
conviction. That he investigated and attempted to negotiate
what he thought was an immigration-neutral disposition does not
mitigate the fact that he did not properly and correctly advise his
client.
Nevertheless, we find unpersuasive appellant’s assertion
that had he been properly advised that he was facing mandatory
deportation, he would have insisted on an immigration-neutral
disposition and, failing that, gone to trial instead of accepting the
plea agreement.
The only evidence that avoiding deportation was
appellant’s priority at the time of the plea was his own
declaration. Appellant’s assertion that he would not have pled
but for Woodward’s failure to advise him correctly of adverse
immigration consequences is not sufficient by itself. (Lee v. U.S.,
supra, 137 S.Ct. at p. 1967.) There must also be
contemporaneous evidence to substantiate appellant’s expressed
preferences. (Ibid.) “Courts should not upset a plea solely
because of post hoc assertions from a defendant about how he
would have pleaded but for his attorney’s deficiencies. Judges
should instead look to contemporaneous evidence to substantiate
a defendant’s expressed preferences.” (Ibid.) “It is up to the trial
court to determine whether the defendant’s assertion is credible,
and the court may reject an assertion that is not supported by an
explanation or other corroborating circumstances.” (Martinez,
supra, 57 Cal.4th at p. 565.) Among the many factors to be
16
considered are “the presence or absence of other plea offers, the
seriousness of the charges in relation to the plea bargain,
[appellant’s] criminal record, [appellant’s] priorities in plea
bargaining, [appellant’s] aversion to immigration consequences,
and whether [appellant] had reason to believe that the charges
would allow an immigration-neutral bargain that a court would
accept.” (Martinez, supra, 57 Cal.4th at p. 568.)
We are not convinced by appellant’s insistence that he
would have opted for trial had he been properly advised of the
immigration consequences. Appellant had no prior criminal
record and the maximum sentence he faced as a first offender if
convicted after trial was 26 years in prison. The plea agreement,
on the other hand, guaranteed him a three-year sentence. The
People’s case against him was strong in that it included his own
admissions that he committed sexual acts on the child,
corroborating, at least in part, Vanessa’s accusations. His
counsel and own sister were recommending that he take a plea to
avoid a long prison sentence as conviction seemed assured.
Neither he nor his sister inquired further about immigration
consequences after being advised that deportation was a
possibility. There is nothing in appellant’s declaration to show
that avoiding deportation was a priority of his at the time he
entered into the plea agreement. During oral argument, counsel
for appellant relied on the fact that appellant opted to remain in
ICE detention for years to oppose deportation and remain with
his family in the only country he has ever known as evidence that
avoiding deportation is of the utmost priority for him. We might
speculate that remaining in the country was important to
appellant as this is the only country he has ever known, but
whether that consideration rose to preeminence over avoiding a
17
long prison sentence at the time of taking the plea in 2017 is
speculative based on the evidence before the trial court.
Undoubtedly, removal from the United States after creating a life
here is a nightmare; however, the test for prejudice considers
what appellant would have done had he been advised of
immigration consequences at the time of the plea and not the
consequences appellant faced in July 2019 and continues to face
now in 2021. (See Martinez, supra, 57 Cal.4th at p. 564.)
Taking into consideration the strength of the People’s case
and the significant disparity in sentencing between conviction by
trial and conviction by plea, it is reasonable to conclude that the
most likely probability is that these combined factors motivated
appellant to agree to plead rather than go to trial and risk
substantial prison time. Appellant’s apparent indifference at the
time of the plea to the idea of even possible immigration
consequences further supports our analysis.
Finally, appellant contends Vanessa’s recantation
constitutes newly discovered evidence of actual innocence under
section 1473.7, subdivision (a)(2), requiring vacation of the 2017
conviction. The People argue Vanessa’s recantation is suspect as
she waited over a year to come forward and is doing so now
because appellant faces deportation. The trial court personally
observed Vanessa as she testified. (See Vivar, supra, 11 Cal.5th
at pp. 527–528.) The trial court did not believe Vanessa’s new
rendition of events, finding the reasons she gave for recanting
“just not credible.” We give particular deference to a trial court’s
ruling on witness credibility. (Ibid.) We see no reason to depart
from that maxim with this witness.
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Exercising our independent review while giving particular
deference to the trial court’s credibility determinations, we
conclude appellant did not meet his burden for section 1473.7
relief.
DISPOSITION
The order denying appellant’s motion to vacate is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
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