People v. Gonzalez CA2/6 ( 2021 )

Filed 2/18/21 P. v. Gonzalez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303693
(Super. Ct. No. 2013023485)
Plaintiff and Respondent, (Ventura County)
v.
LUIS GONZALEZ,
Defendant and Appellant.
Luis Gonzalez appeals an order denying his motion to
vacate his 2014 conviction for possession for sale of
methamphetamine (Health & Saf. Code, § 11378), a felony,
pursuant to Penal Code section 1473.7.1 He claimed that at the
time of his guilty plea he was not properly advised about the
mandatory immigration consequences of his conviction. We
conclude, among other things, that Gonzalez was properly
advised that he would be deported as a result of this conviction,
All statutory references are to the Penal Code unless
1
otherwise stated.
and he has not shown that his counsel provided incorrect
information about the immigration consequences. We affirm.
FACTS
In 2013, a sheriff narcotics detective received information
that Gonzalez “was dealing methamphetamine in Ventura
County.” The detective “set up a controlled purchase of
methamphetamine from [Gonzalez] using [a confidential
informant].”
On July 26, 2013, a “high risk stop” was conducted when
Gonzalez was in a parking lot where he “was known to conduct
his sales transactions.” A search of Gonzalez’s vehicle revealed
he was “in possession of one plastic baggie containing 8 grams of
methamphetamine, and a second baggie containing .4 gram of
methamphetamine.” Two cellular phones were recovered. They
contained “several text messages related to drug sales.” In a
search of Gonzalez’s residence, detectives found “13 ‘false soda
cans,’ which are used to transport drugs.”
In 2014, Gonzalez pled guilty to possession for sale of
methamphetamine (Health & Saf. Code, § 11378), a felony. The
trial court suspended imposition of sentence and placed him on
probation for 36 months.
At the time he entered his plea, Gonzalez signed a “felony
disposition statement.” He initialed an immigration advisement
on that plea form. It provided, in relevant part, “If I am not a
citizen and am pleading guilty to an aggravated felony,
conspiracy, a controlled substance offense, . . . I will be deported,
excluded from the United States and denied naturalization.”
(Italics added.)
In 2019, Gonzalez filed a motion to vacate conviction under
section 1473.7. He said his attorney Adam Pearlman had
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misadvised him about the immigration consequences of his plea.
He claimed his counsel did not advise him that he faced
mandatory deportation as a result of that plea, and instead
incorrectly told him that the conviction “would not have any
effect.” In his declaration he said, “On February 21, 2019, I
received notice from the U.S. Department of Homeland Security
that I am subject to removal from the United States based on this
case.” “If I had known that the specific conviction in this case
would affect my immigration status, I would have requested my
attorney seek an alternative charge or would have taken the case
to trial.”
At the hearing on the motion, Gonzalez testified Pearlman
told him that his controlled substance conviction in 2014 would
not “affect [his] green card.” His counsel never advised him that
pleading guilty would result in his deportation. Gonzalez “filled
out the plea form at the courthouse.” He did not read the
paragraph on the plea form “regarding immigration consequences
for the plea.” Pearlman did not advise him “at all of the
immigration consequences of [his] plea.” Gonzalez testified
Pearlman “just scanned through” the plea form and “summarized
what [he] would be initialing.”
On cross-examination, Gonzalez testified Pearlman also
represented him on his prior conviction for possession of
methamphetamine in 2012. Gonzalez said he did not remember
whether he asked Pearlman about the immigration consequences
of his guilty plea to that 2012 offense. He did not consult with an
immigration attorney in 2012 either before or after his plea.
Gonzalez’s counsel objected to the evidence about his 2012
conviction. The trial court overruled the objection. It said his
testimony about the 2012 conviction could support the People’s
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claim that “if he was unconcerned about immigration
consequences in 2012,” it would undercut his testimony that he
was concerned about immigration consequences in 2013 and
2014.
Pearlman testified he did not have a specific recollection
about this 2014 case, but his routine practice was to read the
immigration advisement on the plea form to his clients. He
testified that he would never tell a client pleading guilty to
“possession of sale of methamphetamine” that “it would not have
any effect” on immigration status because he knows “that’s not
true.” He had been a deputy district attorney for 10 years and a
private defense attorney for 16 years. He would “read verbatim”
the immigration advisement to defendants. “I would never say,
oh, don’t worry about immigration consequences.” He also
testified, “I don’t believe an immigration-safe plea was possible
on this case because of the charges.”
The trial court denied the motion. It found, among other
things, that “the conviction is not legally invalid due to
prejudicial error and does not damage 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. . . . [¶] . . . The plea form, which
was read to the defendant by his attorney and initialed by the
defendant, states unequivocally, ‘If I am not a citizen and am
pleading guilty to . . . a controlled substance offense . . . I will be
deported.’ ”
DISCUSSION
Valid Immigration Consequences Advisements
Gonzalez contends the trial court erred by denying his
motion to vacate his conviction. He claims he met the
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requirements to vacate a conviction under section 1473.7 based
on his proof that he received improper immigration consequences
advisements at the time he pled guilty. We disagree.
Section 1473.7 authorizes “a defendant to ‘prosecute a
motion to vacate a conviction’ that 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.’ ” (People v. Ruiz (2020) 49 Cal.App.5th 1061, 1066.) A trial
court “may set aside a conviction based on counsel’s immigration
advisement errors without a ‘ “finding of ineffective assistance of
counsel.” ’ ” (Id. at p. 1067.) “A defendant need only show that
there were ‘one or more’ errors that ‘were prejudicial and
damaged [a defendant’s] “ability to meaningfully understand,
defend against, or knowingly accept the actual or potential
adverse immigration consequences of [his or her] plea.” ’ ” (Ibid.)
To show an error is prejudicial, the defendant must “convince the
court he or she would have chosen to lose the benefits of the plea
bargain despite the possibility or probability deportation would
nonetheless follow.” (People v. Martinez (2013) 57 Cal.4th 555,
565.) A defendant’s self-serving declaration, by itself, is
insufficient to establish prejudice. (In re Alvernaz (1992) 2
Cal.4th 924, 938.)
A defendant who pleads guilty to a controlled substance
offense must be advised that there are mandatory adverse
immigration consequences that will occur as a result of that
conviction. (People v. Patterson (2017) 2 Cal.5th 885, 894-896.)
“Defendants must be advised that they will be deported,
excluded, and denied naturalization as a mandatory consequence
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of the conviction.” (People v. Ruiz, supra, 49 Cal.App.5th at
p. 1065.)
On Gonzalez’s felony disposition statement, he initialed
that he was advised, “If I am not a citizen and am pleading guilty
to an aggravated felony, conspiracy, a controlled substance
offense, . . . I will be deported, excluded from the United States
and denied naturalization.” (Italics added.) This was the proper
immigration advisement for his controlled substance offense.
(People v. Ruiz, supra, 49 Cal.App.5th at p. 1065.)
Gonzalez claims he presented evidence showing ineffective
assistance of counsel on immigration advisements. Gonzalez
testified that his counsel, Pearlman, told him his conviction
would not “affect [his] green card.” Pearlman advised him
“everything was okay.” He never told him that “pleading to [a
section] 11378 would cause [him] to be deported.”
Gonzalez contends Pearlman offered “no affirmative
evidence” about immigration advisements because he “did not
recall the specifics of [this] case.” But Pearlman testified about
his “routine practice” in making immigration advisements.
(People v. Arriaga (2014) 58 Cal.4th 950, 963-964 [trial court may
consider evidence about an attorney’s routine practice in advising
defendants about the immigration consequences of a plea].)
Pearlman said his practice was to read the immigration
advisement section of the plea agreement to his clients. He
would tell them that if they were pleading guilty to a controlled
substance offense, they “will be deported, excluded from the
United States, and denied naturalization.” He testified that he
would have advised Gonzalez of that in this case. He also
testified that he would never have told a client who was pleading
guilty to “possession of sale of methamphetamine” that “it would
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not have any effect” on immigration status, because he knows
“that’s not true.”
Here Pearlman’s testimony contradicted Gonzalez’s claims
about invalid immigration consequences advisements. The trial
court resolved this evidentiary dispute against Gonzalez. As the
People note, it found Pearlman’s testimony to be credible by
finding “the conviction is not legally invalid.” The court also
found Gonzalez was not credible. The court said that it was
“unpersuaded by Defendant’s testimony that he would not have
pled guilty for the negotiated sentence if he had received more
emphatic instruction to take the written warning ‘I will be
deported’ more seriously.”
Witness credibility is initially determined by the trial judge
who observes the demeanor of the witnesses as they testify.
(People v. Maury (2003) 30 Cal.4th 342, 403; People v. Tapia
(2018) 26 Cal.App.5th 942, 953; People v. Harris (2015) 234
Cal.App.4th 671, 695.) Courts do not upset pleas based solely on
“post hoc assertions” from defendants. (People v. DeJesus (2019)
37 Cal.App.5th 1124, 1134.) “An 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.) Consequently, courts should consider the objective
“contemporaneous evidence.” (DeJesus, at p. 1134, citing Lee v.
United States (2017) _ U.S. _ [198 L.Ed.2d 476, 487].)
Here the contemporaneous evidence involving the 2014
plea hearing supports both the trial court’s findings denying the
motion and Pearlman’s testimony.
Gonzalez initialed the immigration warning on his 2014
plea agreement that stated, “I will be deported, excluded from the
7
United States and denied naturalization [because of this
conviction].” (Italics added.) That warning was both unequivocal
and explicit. From Pearlman’s testimony, the trial court found
Pearlman read this warning to Gonzalez. (People v. Olvera
(2018) 24 Cal.App.5th 1112, 1117 [counsel may satisfy the duty to
advise on immigration consequences by reading the mandatory
immigration consequences advisement on the plea form].)
At the end of that 2014 plea agreement, Gonzalez signed
the following statement, “I have read and understand this form. I
have discussed with my attorney and understand the
consequences of this plea . . . .” (Italics added.) This undermines
claims Gonzalez made about not understanding the consequences
of the conviction on his immigration status. Moreover, Gonzalez’s
prior statements in the 2014 record are consistent with
Pearlman’s testimony.
At the 2014 plea hearing, Gonzalez pled guilty to two
offenses: 1) taking a vehicle, and 2) possession of
methamphetamine for sale. The prosecutor asked Gonzalez
about the plea agreements he signed and the check marks he
initialed on those plea forms.
Prosecutor: “By placing your initials next to these check
marks and then signing with today’s date, are you telling Judge
Wright that you read through both of these forms and that you
understand and agree to them?” (Italics added.) Gonzalez: “Yes.”
Prosecutor: “Do you have any questions whatsoever either
about the meaning of what’s contained in these forms or the
effect that pleading guilty on these cases is going to have on you?”
Gonzalez: “No.”
The prosecutor, noting that Gonzalez had signed and dated
the plea forms, asked, “Did you do that after you read through
8
these forms and went over them with your lawyer?” Gonzalez:
“Yes.” (Italics added.)
Before accepting the pleas at the 2014 hearing, the trial
judge asked Gonzalez, “Do you understand the paragraphs that
you initialed on the Felony Disposition Statement?” Gonzalez:
“Yes.” (Italics added.)
The court: “Did you have sufficient time to talk to your
lawyer about what you are doing in this case?” Gonzalez: “Yes.”
The court: “Do you understand all the rights and questions
that [the prosecutor] just went over with you?” Gonzalez: “Yes.”
In 2014, the trial court found that Gonzalez “understands
the nature of the charge(s) and the consequences of his plea(s)”;
that his pleas are “free and voluntary”; and that he “knowingly,
intelligently, and understandingly waived his rights.” (Italics
added; People v. Fairbank (1997) 16 Cal.4th 1223, 1254 [a trial
court’s observations and findings about the defendant at the time
of the plea may constitute substantial evidence to support a
finding that the defendant’s current factual claims on a motion to
vacate the plea are not credible].)
Gonzalez testified at the hearing on the motion to vacate
that he did not read the immigration advisement on the plea
agreement. But this was contradicted by his statement at the
end of the 2014 plea form certifying that he read it, and by his
statements to the prosecutor and the court as shown in the
transcript of the 2014 hearing. “Solemn declarations in open
court carry a strong presumption of verity.” (Blackledge v.
Allison (1977) 431 U.S. 63, 74 [52 L.Ed.2d 136, 147].) They
“constitute a formidable barrier in any subsequent collateral
proceedings.” (Ibid.) Gonzalez has not shown why the court
could not also question the credibility of the declaration he filed
9
in support of his motion to vacate. That declaration does not
contain any reference to the immigration advisement in the 2014
plea agreement. Other claims Gonzalez made in his motion to
vacate are also substantially different from statements he made
in the record of the 2014 proceeding. The trial court could
reasonably consider this conflict in deciding Gonzalez’s
credibility.
Gonzalez notes that during Pearlman’s testimony
Pearlman said he did not know immigration law rules. But the
issue was not whether he was an immigration law expert, it was
whether he misadvised Gonzalez about the consequences of his
plea. (Padilla v. Kentucky (2010) 559 U.S. 356, 369 [176 L.Ed.2d
284, 296] [the court recognized that some defense counsel are not
experts in immigration law, but the relevant issue is whether
they properly advised the defendant of the mandatory
immigration consequences of a plea]; People v. Olvera, supra, 24
Cal.App.5th at p. 1117; Mandarino v. Ashcroft (D.Conn. 2002)
290 F.Supp.2d 253, 262 [“A defense counsel need not become an
expert in immigration law to represent a criminal defendant at a
sentencing”].)
Pearlman testified, “I’m unaware of how that deportation
occurs in immigration court.” But he also testified he knew the
deportation consequences of the plea. He said he knew that
“because of that section on the plea form, that it triggers
deportation.” He said he knew if “you’re pleading guilty to a
controlled substance offense, you will be deported.” (Italics
added.) Gonzalez claimed Pearlman misadvised him about the
consequences. But the trial court rejected that claim by finding
Pearlman properly advised him of the mandatory deportation
consequences. This was a finding that Pearlman complied with
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the “duty to give correct advice” about those consequences.
(Padilla v. Kentucky, supra, 559 U.S. at p. 369 [176 L.Ed.2d 284,
296].)
In denying Gonzalez’s motion to vacate, the trial court
could reasonably find Pearlman’s testimony was consistent with
the transcript of the 2014 plea hearing and the valid immigration
advisement in the plea agreement that Gonzalez initialed.
(People v. Arriaga, supra, 58 Cal.4th at pp. 963-964.) Pearlman’s
testimony, the plea form, and the transcript of the 2014 hearing
undermine Gonzalez’s claims about invalid immigration
advisements. (Ibid.) Gonzalez has not shown why the trial court
could not find that he was properly advised and that there were
no errors by either the court or counsel.
The trial court also rejected the credibility of Gonzalez’s
claim that had he known the immigration consequences he would
not have entered the plea. This “is a factual question for the trial
court.” (People v. Araujo (2016) 243 Cal.App.4th 759, 763.) “It is
up to the trial court to determine whether the defendant’s
assertion is credible . . . .” (People v. Martinez, supra, 57 Cal.4th
at p. 565.) In the People’s opposition to the motion, they noted
that Gonzalez received the benefit of probation. But had he gone
to trial, he faced “powerful corroborative evidence” to support a
conviction and the prospect for a substantial prison term. The
trial court noted that the potential for conviction and a prison
term after a trial was substantial because of several factors
including: 1) the “strength of the evidence,” 2) his “prior drug
conviction,” 3) the “increasing seriousness of his offenses,” and 4)
his commission of another offense “while he was out on bail.” In
his motion and declaration, Gonzalez did not make a showing to
challenge the strength of the People’s case or show he had
11
defenses. The trial court could reasonably find the facts relating
to his arrest, the amount of methamphetamine recovered, and
the text messages about drug sales constituted highly
incriminating evidence.
A defendant who is “highly likely to lose at trial” and
“facing such long odds will rarely be able to show prejudice from
accepting a guilty plea that offers him a better resolution than
would be likely after trial.” (Lee v. United States, supra, _ U.S. _
[198 L.Ed.2d 476, 486].) Moreover, a defendant will not prevail
where he or she failed to present “contemporaneous evidence to
substantiate” his or her “post hoc assertions” about how
differently he or she would have pled. (Id. at p _ [p. 487].)
The trial court found that at the time of his plea in 2014
Gonzalez was an unmarried adult without children. It could
reasonably find that his testimony about the prior 2012 plea
showed a lack of concern about immigration consequences. The
People noted that “[a]t no time during the [2014] plea colloquy
did [Gonzalez] express any concerns about immigration
consequences . . . .” (Italics added.) On January 30, 2014,
Gonzalez was interviewed by the probation department. He
admitted he “sold substances for approximately 3 months prior to
his arrest.” He said he wanted a one-year jail sentence and was
willing to comply with probation. But he made no reference to
any concern about his immigration status. (Lee v. United States,
supra, _ U.S. _ [198 L.Ed.2d 476, 487].) At the sentencing
hearing in February 2014, Gonzalez also made no statement
indicating any concern about immigration consequences. (Ibid.)
Given the facts, the 2014 record, Pearlman’s testimony, and the
negative credibility finding about Gonzalez, the trial court could
reasonably find it “is not reasonably probable that [Gonzalez]
12
would have forgone the distinctly favorable outcome [he]
negotiated had [he] been advised in some other manner about the
immigration consequences of pleading guilty.” (People v. Araujo,
supra, 243 Cal.App.4th at p. 764.)
Gonzalez has the burden to show trial court error. We have
reviewed his remaining contentions and we conclude he has not
shown grounds for reversal.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
PERREN, J.
TANGEMAN, J.
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David R. Worley, Judge
Superior Court County of Ventura
_____________ _________________
Laurie A. Thrower, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steve Matthews and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
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