People v. Murillo CA2/3 ( 2021 )

Filed 3/15/21 P. v. Murillo CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B305354
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A193950)
v.
JUANA MURILLO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Laura C. Ellison, Judge. Affirmed.
Law Office of Gary Finn and Gary Finn for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland and
Charles C. Ragland, Assistant Attorneys General, and Adrian R.
Contreras, Deputy Attorney General, for Plaintiff and
Respondent.
——————————
Juana Murillo appeals from an order denying her motion
under Penal Code1 section 1473.7 to withdraw her 1978 guilty
plea to drug-related offenses. Because Murillo failed to establish
prejudicial error, we affirm.
BACKGROUND
Murillo was born in Mexico but came to the United States
in about 1977 to work so that she could send money to her ill
mother back in Mexico. She lived with her sister in the United
States and planned to return to Mexico after one year. However,
in 1978, Murillo was arrested and pleaded guilty to selling or
transporting marijuana (Health & Saf. Code, § 11360) and to
possessing marijuana for sale (Health & Saf. Code, § 11359). At
the plea hearing, Murillo, with the assistance of a Spanish
language interpreter, agreed that she had discussed the facts and
all possible defenses with her attorney. When her counsel asked
the trial court to advise Murillo about deportation, the trial court
advised her in accordance with section 1016.5 that if she was “not
a citizen of the United States, you are advised that conviction of
the offense for which you have been charged and to which you are
pleading guilty may have the consequence of deportation,
exclusion from admission to the United States, of denial of
naturalization pursuant to the laws of the United States.”
Murillo said she understood.2
In 2019, Murillo moved under section 1473.7 to withdraw
her guilty plea, arguing that she entered into the plea without a
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2 Murillo’s sentence is not in the record.
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meaningful understanding of the immigration consequences.3 In
her accompanying declaration, Murillo stated she was now
60 years old, had lived in the United States for over 40 years, and
had a California-born daughter. Her daughter had filed a visa
petition on Murillo’s behalf. With respect to her 1978 conviction,
Murillo said she was arrested with another woman. Murillo’s
then attorney advised Murillo to plead guilty, saying she would
get probation and would not receive a long jail sentence. She did
not want to plead guilty, but her attorney told her she would get
out of jail sooner. He never told her that her plea would prevent
her from obtaining lawful permanent resident status. Had she
known her plea would render her ineligible for legal residency,
she would not have pleaded guilty. Murillo’s 1978 conviction has
been her sole contact with law enforcement.
At a hearing on the section 1473.7 motion, the trial court
expressed doubt that Murillo could substantiate her claim that
her attorney forced her to plead guilty without a declaration from
that attorney. In the absence of such a declaration, the trial
court did not think the motion should be granted. Murillo’s
counsel then informed the trial court that he and the prosecutor
were discussing allowing Murillo to withdraw her plea and to
plead guilty to another charge. Counsel also said he would
subpoena Murillo’s former counsel if they were going to litigate
the motion. Therefore, counsel said he was not ready to go
3 Previously, Murillo’s petition under section 1203.4 had
been granted. Also, her petition under Proposition 64 was
granted; accordingly, her conviction under Health and Safety
Code section 11360 was dismissed and her conviction under
Health and Safety Code section 11359 was reduced to an
infraction.
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forward with the hearing and asked for a continuance, which the
trial court granted.
By the time of the continued hearing at which Murillo was
not personally present, she had filed a request to withdraw her
motion without prejudice. In response, the trial court suggested
that Murillo was judge shopping, as Murillo had only wanted to
withdraw her motion after the trial court gave a “tentative
ruling” at the prior hearing. The trial court gave Murillo the
option of withdrawing her motion with prejudice or having it
denied on the merits. Murillo’s counsel elected a ruling on the
merits. The trial court found that Murillo had been fully and
properly advised of the immigration consequences of her plea and
denied the motion to withdraw her plea.
DISCUSSION
A noncitizen defendant who is no longer in criminal custody
may move to vacate a conviction or sentence when 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 guilty plea. (§ 1473.7,
subd. (a)(1).)4 The defendant bears the burden of establishing
two elements of prejudicial error: (1) she failed to “ ‘meaningfully
understand’ ” or “ ‘knowingly accept’ ” the actual or potential
adverse immigration consequences of her plea, and (2) had she
understood the consequences, it is “reasonably probable” she
would not have entered the plea. (People v. Mejia (2019)
4 Section1473.7 was added by Statutes 2016, chapter 739,
section 1 and became effective January 1, 2017.
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36 Cal.App.5th 859, 862 (Mejia).) Although a defendant may
show that her counsel rendered ineffective assistance to obtain
relief under section 1473.7, the statute does not require such a
showing. (§ 1473.7, subd. (a)(1); Mejia, at p. 871.) Rather, the
focus of the inquiry is the defendant’s mindset and what she
understood or did not understand when the plea was taken.
(Mejia, at p. 866; People v. Camacho (2019) 32 Cal.App.5th 998,
1010.) The statute thus requires a finding that the defendant
erred, not her counsel. (Mejia, at p. 871.) A court must grant a
section 1473.7 motion “if the moving party establishes, by a
preponderance of the evidence,” the grounds for relief under
subdivision (a)(1). (§ 1473.7, subd. (e)(1).)
What standard of review applies to an order denying a
section 1473.7 motion is in dispute. Courts of Appeal have held
that where a section 1473.7 motion is based on a claim of
ineffective assistance of counsel, the claim implicates a
constitutional right and is therefore a mixed question of fact and
law and subject to independent review. (People v. Vivar (2019)
43 Cal.App.5th 216, 224, review granted Mar. 25, 2020, S260270;
People v. Rodriguez (2019) 38 Cal.App.5th 971, 977–978; People
DeJesus (2019) 37 Cal.App.5th 1124, 1132.) Courts of Appeal
have also found that where the appeal is based on a claim of
statutory error or deprivation of statutory rights, our review is
for an abuse of discretion. (Vivar, at p. 224.) Justice Raphael,
however, would apply the independent review standard across
the board, including to claims of statutory error. (People v. Bravo
(2020) 58 Cal.App.5th 1161, 1180 (conc. opn. of Raphael, J.), petn.
for review pending, petn. filed Feb. 1, 2021.)
We need not delve into this dispute. Under either standard
of review, we would affirm the order denying the motion. As we
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have said, the primary inquiry a section 1473.7 motion presents
is what was the defendant’s mindset and understanding when
the plea was taken. (See, e.g., Mejia, supra, 36 Cal.App.5th at
p. 866.) A defendant’s self-serving statement that she would
have rejected the plea bargain is insufficient by itself to “sustain
the defendant’s burden of proof as to prejudice, and must be
corroborated independently by objective evidence.” (People v.
Bravo, supra, 58 Cal.App.5th at p. 1171.) Courts thus must look
to contemporaneous evidence, that is, evidence from the time of
the plea, to substantiate a defendant’s expressed preferences.
(Ibid.) A “court needs evidence about the defendant, prosecution,
and case at the time of the plea,” which evidence could include
the defendant’s ties to the United States in light of the
consequences of rejecting the plea and proceeding to trial. (Id. at
p. 1184 (conc. opn. of Raphael, J.).)
The defendant in Mejia, supra, 36 Cal.App.5th at page 863,
for example, pleaded guilty to drug-related crimes and was given
the same advisement given to Murillo. Years later, he moved
under section 1473.7 to withdraw his plea, stating that he had
lived in the United States since he was 14 years old and that
when arrested he was married with an infant son. (Mejia, at
p. 863.) Mejia’s then attorney said he had to take the offered
plea, otherwise he would spend years in prison. His attorney
never asked about his immigration status and never explained he
would be deportable if he entered into the plea agreement. Mejia
reversed the trial court’s order denying the motion. The court
found that Mejia’s undisputed testimony established he did not
meaningfully understand or knowingly accept the mandatory
deportation consequences. (Id. at p. 872.) Further,
contemporaneous evidence regarding Mejia’s then family
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situation and the likelihood that had he gone to trial he would
have been granted probation or a low prison sentence established
that the error was prejudicial. (Id. at pp. 872–873; accord, People
v. Camacho, supra, 32 Cal.App.5th at p. 1011 [prejudice
established by defendant who lived in United States since two
years old and had a family at time of plea].)
In contrast, Murillo submitted little evidence to meet her
burden. Murillo said she did not receive a “complete immigration
advisement” because no one advised she was pleading to a crime
that would render her “inadmissible for life” from the United
States. (See, e.g., 8 U.S.C. § 1182(a)(2)(A)(i)(II) [noncitizen
convicted of law relating to controlled substance ineligible for
visa and admission].) However, the record shows that she
received the standard section 1016.5 advisement. While that
advisement does not preclude a defendant from establishing she
did not have a meaningful understanding of the immigration
consequences of her plea (see generally Padilla v. Kentucky
(2010) 559 U.S. 356, 374; People v. Patterson (2017) 2 Cal.5th
885, 889; § 1018), a defendant seeking relief under section 1473.7
must still establish that fact (see, e.g., People v. Bravo, supra,
58 Cal.App.5th at pp. 1170–1172). The defendant in People v.
Ogunmowo (2018) 23 Cal.App.5th 67, 73, established that fact by
submitting with his section 1473.7 motion his attorney’s
admission he misadvised the defendant that he would not face
immigration consequences from his plea.
Here, Murillo does not deny that the trial court advised her
under section 1016.5; yet, she has not said what she thought the
advisement meant. She merely says her attorney did not advise
her she would be unable to obtain lawful permanent status. But,
as the trial court observed, to the extent Murillo was saying her
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attorney in 1978 forced her into a plea, she needed the attorney’s
testimony. To that end, Murillo asked for and was granted a
continuance so that she could subpoena her former attorney.5
She did not then produce evidence from him at the continued
hearing or otherwise make an offer of proof of what he would say.
Murillo also did not submit contemporaneous evidence to
establish prejudice. Rather, her supporting declaration focused
on her current situation rather than on her situation and mindset
in 1978. She merely said that her young age (21 years old)
negatively affected her understanding when she entered the plea.
The record otherwise shows that Murillo’s ill mother was in
Mexico and that Murillo had come to the United States only to
make money to help her mother and then to return. Murillo’s
family circumstances thus tied her to Mexico rather than to the
United States, and nothing in the record shows that any
immigration consequences mattered to Murillo in 1978.
As Murillo therefore did not meet her burden of proof, the
trial court did not err by denying her section 1473.7 motion.
5 The trial court believed that Murillo’s then attorney was
still local.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
SALTER, J.*
We concur:
EDMON, P. J.
EGERTON, J.
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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