People v. Hernandez CA4/2 ( 2023 )

Filed 1/11/23 P. v. Hernandez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077416
v. (Super.Ct.No. FWV1003124)
EDUARDO HERNANDEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Daniel W.
Detienne, Judge. Affirmed.
Jill Kent, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Adrian R. Contreras, Deputy
Attorney General, for Plaintiff and Respondent.
1
INTRODUCTION
In 2010, defendant and appellant Eduardo Hernandez pled guilty to carrying a
concealed weapon that was stolen (former Pen. Code,1 § 12025, subd. (a),2 count 1) and
possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), count 2),
both as misdemeanors (Pen. Code, § 17, subd. (b)). In 2020, he filed a motion pursuant
to Penal Code section 1473.7 to withdraw his plea and vacate his convictions on the
grounds that his attorney failed to investigate the immigration consequences of his plea,
failed to inform him of the actual immigration consequences of his plea, and failed to
seek an immigration-safe plea. The trial court denied the motion.
Defendant appeals, contending that he did not understand the immigration
consequences of his plea. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND3
Police officers responded to a report of someone hearing gunshots in a residential
neighborhood in Ontario. They searched the neighborhood and found defendant standing
next to a fence. They asked him to take his hands out of his pockets and approach them.
1 All further statutory references will be to the Penal Code unless otherwise
indicated.
2 Effective in 2012, the Legislature renumbered this statute as section 25400.
3 The factual background is taken from the police report. We note the minute
order only indicates the court found that defendant’s plea was “based on fact,” but did not
state a specific factual basis for the plea. We further note the clerk of the San Bernardino
County Court was unable to ascertain the identity of the court reporter at the plea hearing;
thus, the reporter’s transcript from the plea hearing was not available.
2
Defendant walked toward the officers, but momentarily sidestepped and hid behind a
tree, removed something from his pants, and then resumed approaching the officers. The
officers detained him. They searched near the tree and found a handgun with a magazine
inside of it. Even though the ground was wet from the prior rain, the gun was mostly dry.
The officers arrested defendant and transported him to the police station. Upon booking
him, an officer took everything out of defendant’s pockets. As the officer grabbed
defendant’s wallet, he felt something fall out of it. The officer reached back into his
pocket and retrieved a plastic baggy that contained six grams of methamphetamine. A
records search revealed the gun was a .38-caliber semiautomatic firearm that had been
reported stolen over 10 years earlier.
On December 12, 2010, defendant was charged by felony complaint with carrying
a concealed weapon that was stolen (former Pen. Code, § 12025, subd. (a), count 1) and
possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a), count 2).
On December 28, 2010, defendant entered a plea agreement and pled guilty to
counts 1 and 2, which were reduced to misdemeanors pursuant to section 17, subdivision
(b). Defendant initialed the box next to the statement: “I understand that if I am not a
United States citizen, my plea could result in my deportation, exclusion from future
admission to the United States, or denial of naturalization under the laws of the United
States.” Defendant also initialed the box next to the statement: “I have personally
initialed each of the foregoing boxes and I understand each and every one of the rights
outlined, and I hereby waive or give up each of them in order to enter my guilty/nolo
contendere plea to the above charge(s) and admission(s). No one has used any force or
3
threat against me or anyone close to me in order to make me enter this plea. I am not
under the influence of any substance that impacts my ability to understand or waive my
rights. I am entering this plea or authorizing my attorney to enter this plea on my behalf
either because I am guilty and for no other reason or because the plea is result of plea-
bargaining.” Defendant signed his name on the plea form underneath that statement. He
also signed his name under a paragraph which stated, in part: “I consent and agree to the
terms of the PLEA BARGAIN and to the entry of same in the minutes of said court, and
acknowledge receipt of a copy of this document, . . .” An interpreter signed the
agreement, under penalty of perjury, stating that she read the entire agreement to
defendant in Spanish.
Defendant’s plea counsel also signed the form beneath the statement: “I am the
attorney for the defendant, and I have explained to the defendant each of his/her rights,
the nature of and defenses to the charge(s), and the consequences of his/her guilty/nolo
contendere plea and admission. I personally observed him/her to read, initial, date and
sign this document. I consent to the entry of his/her plea and admission.” The judge
signed the findings, which stated: “1. Defendant and/or his/her attorney appeared in open
Court and entered this plea and admission. [¶] 2. Defendant understands the nature of
the charge(s) and the consequences of his/her plea and admission. [¶] 3. Defendant has
knowingly, intelligently, expressly and voluntarily waived the rights as set forth above.
[¶] 4. There is a factual and/or plea bargain basis for the plea.”
At the plea hearing on December 28, 2010, defendant pled guilty to counts 1 and 2
as misdemeanors. The minute order indicates the court found that defendant understood
4
the charges, the possible penalties, the rights against self-incrimination, to confront and
cross-examine witnesses, to a public and speedy trial, to a jury trial, to have an attorney
present at all stages of the proceedings, and “to the Public Defender if indigent and to the
compulsory process of the court to subpoena witnesses.” The court also found the plea
was based on fact. Pursuant to the plea agreement, the court placed defendant on
probation for three years under specified terms, including 97 days in county jail.
On March 19, 2021, defendant filed a motion to vacate his convictions pursuant to
section 1473.7. He asserted that he qualified for relief because his plea counsel rendered
ineffective assistance of counsel (IAC) since he failed to investigate and negotiate an
immigration-neutral plea, and improperly advised him of the immigration consequences
of his plea. Defendant further argued that even if his counsel’s performance did not rise
to the level of IAC, he was still entitled to vacate his convictions because “counsel’s
performance resulted in his failure to meaningfully understand, defend against, or
knowingly accept the immigration consequences of a conviction.” Defendant claimed he
had no idea his convictions subjected him to removal and that remaining in the United
States was very important to him since his family lived here, and he had been here for
years. He claimed “he did not understand much of what was told to him in court”
because he had just graduated from high school, he had cognitive limitations, there was a
language barrier, and because the information given to him was complex. Defendant
further argued he was prejudiced by his counsel’s representation since he would not have
accepted a plea to a violation of Health and Safety Code section 11377 had he known it
would lead to deportation, and had he known, he “would have made a different choice
5
and even agreed to a longer jail sentence.” Defendant stated that following his
convictions, he was ordered removed on March 21, 2011. However, on January 6, 2016,
the Honorable Judge Jesus G. Bernal of the United States District Court for the Central
District of California found that he was unlawfully ordered removed.
In support of the motion, defendant submitted a declaration stating he had lived in
the United States since he was seven years old, and it was just him, his mother, and his
brother; his stepfather came a few months later. He said his stepfather and mother were
together when they were in Mexico, and the stepfather was very abusive toward him and
his mother. His stepfather often let him starve and would leave him bruised from beating
him. Defendant said he was sexually abused and raped by his stepfather’s brother several
times in Mexico. Defendant attended elementary school, middle school, and graduated
from high school here, and he received special education services during his school years
due to a learning disability. While in middle school, he and his girlfriend at the time had
a son. Although he and his girlfriend separated, defendant “remained supportive” of his
son, who was 14 years old.
Defendant stated that in 2010, he was arrested for carrying a concealed weapon
and possession of a controlled substance and pled not guilty. The court appointed him a
public defender, and he pled guilty based on his attorney’s advice. Defendant stated his
immigration status was never discussed, he was never asked about it, his attorney never
informed him of any potential consequences his guilty plea would have on his legal
status, and he was never presented with any possible alternatives or informed of
immigration-neutral pleas.
6
Defendant attached his plea counsel’s case file notes to his motion. His counsel
made a handwritten notation on the notes, stating: “[Defendant] says previously deported
and undocumented.”
Defendant stated that on or around 2013, he was deported and that when he
returned to Mexico, he was kidnapped, beaten, and sexually assaulted. He was
eventually let go but was threatened that if his kidnappers ever saw him again, they
would kill him. Defendant further stated that around 2013, he met and married his
current wife, who is a United States citizen. They had a daughter, who was three years
old.
The prosecutor filed an opposition to defendant’s motion to vacate. He made
several arguments, including that the documents from the time of defendant’s plea show
that he was made fully aware that his plea would make him deportable. The prosecutor
noted that since 2010, defendant had been charged with various other criminal offenses.
In 2015, he was convicted of illegally entering the United States after deportation, and the
documents from that case showed that he had been deported several times. The
prosecution further argued that defendant did not include a completed acknowledgment
form from his plea counsel or show that his counsel was personally served; as such, his
counsel could not be found ineffective. Furthermore, plea counsel’s notes made it clear
that he was aware of defendant’s immigration status and that his immigration status was
discussed. The prosecutor argued that there was no prejudice since defendant had no
legal status, which is what made him deportable, rather than his convictions and his other
7
criminal convictions would have made him deportable sooner or later. Defendant filed a
reply brief to oppose the prosecutor’s arguments.
On July 9, 2021, the court held a hearing on the motion. The court stated that it
reviewed the moving and opposing papers, and it received into evidence the attachments,
including defendant’s declaration and the police report. Defendant testified on his own
behalf. He testified that he entered the United States in 1999, when he was seven years
old. He lived in Ontario with his mother, brother, and stepfather. Defendant said he went
to school here and received special education because he had problems reading and
understanding what happened in class. In 2007 when he was 14 years old, his girlfriend
gave birth to their son.
Defendant testified that he got married in 2013 to his current wife, and they had a
daughter. That same year, defendant was also deported. He testified that in Mexico, he
was kidnapped, beaten, and sexually assaulted. Then he returned to the United States.
Defendant testified that in 2015, he was convicted in federal court of illegally reentering
the United States after being deported. In 2019, he admitted felony evading the police
and reckless driving with alcohol.
Regarding the instant case, defendant said he did not recall speaking with defense
counsel about his immigration status. He denied knowing that his conviction would be
considered an aggravated felony for immigration purposes. Defendant said he did not
recall defense counsel ever telling him about immigration-safe pleas. Defendant testified
that had he known he was pleading to an aggravated felony, he would not have accepted
the plea agreement and would have continued to fight his case or he would have served
8
more time to avoid being deported.4 Defendant said that in 2010, all his family was in
the United States, including his son, and that he had no ties to Mexico. He testified that
he had been deported many times, and he kept coming back to the United States because
his family was here. On cross-examination, defendant testified that he was
undocumented, that he had been deported 11 or 12 times, and he was currently in
deportation proceedings due to his undocumented status.
The court found that defense counsel’s case file notes contradicted defendant’s
testimony that he did not recall discussing immigration consequences with his counsel,
since the notes showed the issue came up. The court found the notes did not
affirmatively prove that defense counsel either misadvised defendant about immigration
consequences or failed to advise him at all about those consequences. The court stated it
needed some kind of objective evidence of that. It then noted that defendant initialed the
box on the plea agreement regarding the adverse immigration consequences. The court
found defendant likely would have been convicted had he gone to trial because the police
found the drugs on his person, in his wallet. It also found there was no evidence of an
immigration-safe disposition that was available to defendant. The court concluded that it
did not see any error or prejudicial error and denied the motion to vacate.
4 Pursuant to the plea agreement, defendant’s convictions were reduced to
misdemeanors under section 17, subdivision (b). “Under the Immigration and
Nationality Act (8 U.S.C. § 1101 et seq.), ‘[a]ny alien who at any time after admission
has been convicted of a violation of . . . any law or regulation of a State, the United States
or a foreign country relating to a controlled substance . . . , other than a single offense
involving possession for one's own use of 30 grams or less of marijuana, is deportable’
[citation], and any such deportable alien ‘shall, upon the order of the Attorney General,
be removed’ [citation].” (People v. Patterson (2017) 2 Cal.5th 885, 895.)
9
DISCUSSION
The Trial Court Properly Denied Defendant’s Motion
Defendant argues the court’s denial of the motion to vacate his conviction should
be reversed. He expressly states he is not claiming IAC, but contends the evidence he
presented showed that he, through his attorney’s error or his own error, failed to
understand the consequence of his plea was mandatory deportation. Defendant claims he
did not understand the immigration consequences of his plea since he was 18 years old
with a learning disability, at the time of the plea. He claims he was prejudiced since, if
he had been advised about or understood the immigration consequences of his plea, he
would have rejected the prosecution’s offer since he came to the United States when he
was seven, all his family was here, he had a son born here, he had no ties in Mexico, and
he needed assistance given his cognitive disabilities. We conclude the court properly
denied the motion.
A. Standard of Review
Our Supreme Court recently determined the standard of review for section 1473.7
motion proceedings. In People v. Vivar (2021) 11 Cal.5th 510, 526 (Vivar), the court
endorsed the independent standard of review. 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
10
the superior court heard and observed are entitled to particular deference, even though
courts reviewing such claims generally may reach a different conclusion from the trial
court on an independent examination of the evidence, even where the evidence is
conflicting. (Id. at pp. 527-528.) In other words, appellate courts should give particular
deference to factual findings based on the trial court’s personal observations of witnesses.
(Ibid.) However, where the facts derive entirely from written declarations and other
documents, “there is no reason to conclude the trial court has the same special purchase
on the question at issue; as a practical matter, ‘[t]he 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. [Citation.] Ultimately it is for the appellate court to decide,
based on its independent judgment, whether the facts establish prejudice under section
1473.7.” (Id. at p. 528, fn. omitted.)
B. Defendant Has Failed to Establish He is Entitled to Relief
Section 1473.7, which became effective on January 1, 2017 (Stats. 2016, ch. 739),
provides that a person who is no longer imprisoned may move to vacate a judgment if 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 conviction or sentence.” (§ 1473.7,
subd. (a)(1).) Thus, a defendant is required to demonstrate that he suffered prejudicial
error. (Ibid.) “The court shall grant the motion to vacate the conviction or sentence if the
moving party establishes, by a preponderance of the evidence, the existence of any of the
grounds for relief specified in subdivision (a).” (§ 1473.7, subd. (e)(1).)
11
“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.” (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75.) However, “[a] finding of
legal invalidity, may, but need not include a finding of ineffective assistance of counsel.”
(§ 1473.7, subd. (a)(1).) In other words, a superior court can make a finding of legal
invalidity “if the defendant simply proves by a preponderance of the evidence 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.’ ” (People v. Mejia (2019) 36
Cal.App.5th 859, 871 (Mejia).)
“[S]howing prejudicial error under section 1473.7, subdivision (a)(1) means
demonstrating a reasonable probability that the defendant would have rejected the plea if
the defendant had correctly understood its actual or potential immigration consequences.
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.)
12
1. Defendant Failed to Establish Error on His Counsel’s Part or His Own
Misunderstanding
Defendant failed to meet his burden of establishing by a preponderance of the
evidence that any prejudicial error on his counsel’s part damaged his ability to
understand, defend against, or knowingly accept the immigration consequences of his
plea. (§ 1473, subds. (a)(1) & (e)(1).) We note the ease with which a defendant may
claim his counsel erred. (See In re Alvernaz (1992) 2 Cal.4th 924, 938.) However, “[a]n
allegation that trial counsel failed to properly advise a defendant is meaningless unless
there is objective corroborating evidence supporting appellant’s claimed failures.”
(People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 223-224.) Thus, defendant’s claims
require “corroboration and objective evidence because a declaration by defendant is
suspect by itself.” (Id. at p. 224.) “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.” (Lee v. United States (2017) 137 S.Ct. 1958,
1967; see Mejia, supra, 36 Cal.App.5th at p. 872 [“[i]n a postconviction setting, 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.’ ”].)
Defendant has presented no such objective, corroborating evidence here. The only
relevant evidence he offers is his self-serving declaration and testimony. Generally, self-
serving declarations lack trustworthiness. (People v. Duarte (2000) 24 Cal.4th 603, 611.)
13
In other words, we are not bound to give full credence to the statements in defendant’s
declaration because of his obvious interest in the outcome of the proceeding. (See People
v. Beck (1961) 188 Cal.App.2d 549, 553.) We note that defendant offered no
contemporaneous evidence such as declaration and/or testimony by his plea counsel.
(See People v. Abdelsalam (2022) 73 Cal.App.5th 654, 664 (Abdelsalam).) In his reply
brief, defendant claims “it is unrealistic to believe that an attorney in a high volume
public defender office would remember a fleeting and remote proceeding.” However, as
respondent points out, public defenders have testified about older plea
discussions/agreements. (See People v. Rodriguez (2021) 60 Cal.App.5th 995, 998-
1001.) Moreover, if defense counsel did not remember defendant’s case, he could have
at least testified to his custom and practice in reaching plea agreements in 2010. (Id. at
p. 1001.) Defendant had the burden of proof, and he presented no evidence that his plea
counsel was unavailable. (§ 1473.7, subd. (e)(1).)
Furthermore, we find defendant’s statements in his declaration that his
immigration status was never discussed, and he was never asked about it, to be not
credible. The evidence showed that plea counsel made a handwritten notation in his case
file notes, stating: “[Defendant] says previously deported and undocumented.” Further,
that notation appears on the page below the notation for defendant’s arraignment and
above where counsel wrote the terms of the plea agreement reached. It is reasonable to
infer from this evidence that defense counsel was aware of defendant’s immigration
status and spoke to defendant about defendant’s immigration status before he pled guilty.
14
Moreover, defendant’s claim on appeal that his declaration and testimony
“establish the lack of information about immigration consequences of his plea damaged
his ability to meaningfully understand and knowingly accept the consequences of this
plea” is belied by the record. The evidence shows he was informed about the
consequences of his plea and understood them. Defendant initialed the box on the
written plea agreement next to the statement: “I understand that if I am not a United
States citizen, my plea could result in my deportation, exclusion from future admission to
the United States, or denial of naturalization under the laws of the United States.”
Defendant also initialed the box next to the statement on the plea agreement: “I have
personally initialed each of the foregoing boxes and I understand each and every one of
the rights outlined, and I hereby waive or give up each of them in order to enter my
guilty/nolo contendere plea to the above charge(s) and admission(s) . . . I am entering
this plea or authorizing my attorney to enter this plea on my behalf either because I am
guilty and for no other reason or because the plea is result of plea-bargaining.” (Italics
added.) Defendant signed his name on the plea form underneath that statement. An
interpreter also signed the agreement, under penalty of perjury, stating that she read the
entire agreement to defendant in Spanish.
Furthermore, defense counsel signed the written plea agreement stating that he
explained defendant’s rights to him, and explained the nature of each charge, any
possible defenses, and the effects and consequences of the plea. The trial court also
signed the written plea agreement, finding defendant knowingly and intelligently waived
15
and gave up his rights, with an understanding of the nature and consequence of the plea.5
Therefore, not only has defendant failed to present evidence to corroborate his claims that
the immigration consequences of his plea were never discussed and he did not understand
them, the evidence demonstrates the opposite—that defense counsel did explain the
immigration consequences of the plea and defendant understood them.
Defendant additionally argues that the advisory on the plea form that the plea
“could result in” deportation was inadequate to advise him that this plea rendered him
automatically deportable. Defendant is correct that under the legal authorities in effect at
the time he entered his plea, his counsel was required to advise him of the specific
immigration consequences of his plea beyond the plea form’s permissive language.
In Padilla v. Kentucky (2010) 559 U.S. 356, the United States Supreme Court held
that criminal defense attorneys have an affirmative duty to advise their clients of the
potential deportation consequences of any plea. (Id. at p. 374. [“[C]ounsel must inform
her client whether his plea carries a risk of deportation.”].) The court acknowledged that
immigration law can be complex and that “[w]hen the law is not succinct and
straightforward . . . a criminal defense attorney need do no more than advise a noncitizen
client that pending criminal charges may carry a risk of adverse immigration
5 We note defendant’s claim that the judge’s signature merely shows the judge
was attesting to “a perception that [defendant] seemed to understand what was going on.”
Defendant states he “does not take issue with the fact that it may have appeared to the
judge in 2010 that he understood the plea; but what he understood at the time is the
issue.” However, defendant has only presented his self-serving testimony of what he
understood at the time. We give deference to what the judge perceived, based on his
personal observation of defendant at the plea hearing. (See Vivar, supra, 11 Cal.5th at p.
527.)
16
consequences.” (Id. at p. 369, fn. omitted.) “But when . . . federal immigration law
specifies in ‘succinct, clear, and explicit’ terms that a criminal conviction will result in
deportability . . . a criminal defense attorney must accurately advise his or her client of
that consequence before the client enters a guilty plea.” (People v. Patterson (2017) 2
Cal.5th 885, 898, citing Padilla v. Kentucky, at pp. 368-369.)
Here, the federal law was clear that defendant’s plea to possession of
methamphetamine would subject him to mandatory deportation.6 However, by failing to
attach a declaration of plea counsel or some other corroborating evidence, defendant has
failed to demonstrate error under Padilla.
Defendant claims that because the reporter’s transcript of the plea colloquy is
unavailable, he “is barred from objective evidence that could demonstrate that” his
counsel did not advise him of the immigration consequences of his plea. However, the
unavailability of the reporter’s transcript does not relieve defendant of his burden of
proof. (§ 1437.7, subd. (e)(1).) At the same time, defendant contends “the circumstances
of the plea” provide objective evidence that his counsel did not explain the immigration
consequences to him, in that his counsel only had a few hours to “prenegotiate a plea,
interview [him], determine the importance to [him] of staying in this country, research
potential and actual immigration consequences of the proffered plea, renegotiate an
immigration-neutral plea, explain [his] options, the immigration consequences, and plea
form, and answer [his] questions.” However, even if his counsel had a limited amount of
6 Defendant pleaded guilty to possession of methamphetamine, which was a
violation of a law relating to a controlled substance. (8 U.S.C. § 1227(a)(2)(B)(i).)
17
time with him, such circumstance does not establish that counsel did not discuss the
immigration consequences of the plea with him.
Defendant further claims he was diagnosed with a learning disability and had “a
reduced ability to comprehend the criminal justice system.” However, he presented no
objective evidence to corroborate such claim. Although he did present evidence that he
had a learning disability and qualified for special education services, such evidence
showed that he struggled academically, in part because he was “still acquiring English
language skills.” In his reply brief, defendant points out that he had delays in reading and
writing in both Spanish and English. However, the evidence he cites is a report from
when he was in second grade, in 2000. The evidence did not show defendant did not
understand the consequences of his plea in 2010.
2. Defendant Has Failed to Establish Prejudice
Even if the advisory form was inadequate or defendant did not understand the
consequences of his plea, he has failed to establish that he was prejudiced. Defendant
claims he was prejudiced since he would not have pled guilty if he had understood he was
subject to mandatory deportation. He asserts that he would not have taken the plea since
he came to the United States at a young age, was educated here, had a son born in the
United States, his family was here and he needed support due to his learning disability,
and he had no ties to Mexico. Defendant’s declaration contains the only direct evidence
presented as to whether he would have taken the plea had he been aware of the
immigration consequences. However, “ ‘a defendant’s self-serving statement—after trial,
conviction, and sentence—that with competent advice he or she would have accepted [or
18
rejected] a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s
burden of proof as to prejudice, and must be corroborated independently by objective
evidence.’ ” (People v. Bravo (2020) 58 Cal.App.5th 1161, 1171, overruled in part on
other grounds, as stated in Vivar, supra, 11 Cal.5th at p. 526.) We note defendant stated
in his declaration that remaining in the United States was “extremely important” to him,
but he did not state that he told his plea counsel his priority was to remain here in order
for his counsel to try to mitigate the consequences of the plea.
Defendant did state in his declaration that he would not have pled guilty if he
knew he was going to be deported7 and he would have tried to negotiate another deal or
gone to trial, and he would have been willing to accept more jail time. However,
defendant failed to present evidence that at the time of the plea, he “had reason to believe
an immigration-neutral negotiated disposition was possible.” (Vivar, supra, 11 Cal.5th at
p. 530.) He offered an expert declaration opining that alternative, nondeportable
dispositions could have been negotiated. However, there was no indication in the record
that the prosecution was willing to agree to an immigration-safe plea. (People v. Perez
(2018) 19 Cal.App.5th 818, 830 (Perez); Abdelsalam, supra, 73 Cal.App.5th at p. 665.)
Similarly, there is no suggestion that defendant’s counsel did not attempt to negotiate
such a disposition. (Perez, at p. 830.)
In addition, the evidence against defendant was strong. It showed that the police
responded to a call of gunshots and observed defendant in the area. When the police told
7 However, we note that defendant testified he had been deported 11 or 12 times.
19
him to walk over to them, he disposed of a gun behind a tree on his way over. The police
also retrieved a plastic baggy that contained six grams of methamphetamine from his
person. Defendant was charged with felony carrying of a concealed weapon that was
stolen (former Pen. Code, § 12025, subd. (a)) and felony possession of a controlled
substance (Health & Saf. Code, § 11377, subd. (a)), and he faced up to three years eight
months in county jail. (see Pen. Code, § 25400; Health & Saf. Code, § 11377, subd. (a).)
Yet, pursuant to the plea agreement, his charges were reduced to misdemeanors, and he
was placed on probation, with only 97 days in county jail. Under these circumstances, it
is not likely defendant would have risked going to trial, being convicted, and facing more
time in custody, as well as the same immigration consequences.
We conclude that defendant failed to meet his burden of establishing by a
preponderance of the evidence that his plea counsel erred or that he (defendant) did not
understand the immigration consequences of the plea. Because defendant failed to meet
his burden of proof, the trial court properly denied the section 1473.7 motion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
CODRINGTON
Acting P. J.
RAPHAEL
J.
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