People v. Barrera-Izaba CA1/2 ( 2021 )

Filed 4/8/21 P. v. Barrera-Izaba CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A159282
v.
GLENN JOSUE BARRERA- (San Mateo County Super.
IZABA, Ct. Nos. SC076650,
NF411195)
Defendant and Appellant.
Defendant Glenn Josue Barrera-Izaba appeals from the order
denying his motion to set aside his 2012 convictions because of prejudicial
error concerning the possible adverse immigration consequences of his
pleading no contest to four felony counts. We affirm.
BACKGROUND
On November 2, 2012, as part of a negotiated disposition, defendant,
who was 24 years old and had a criminal record since 2009, entered pleas
of no contest to two felony counts of insurance fraud (Pen. Code, § 5501)
and two felony counts of grand theft (§ 487); seven remaining counts of
fraud, forgery and grand theft were dismissed. Prior to doing so,
All further statutory references are to the Penal Code unless
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otherwise indicated.
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defendant executed a change of plea form with the following language: “I
understand that if I am not a citizen, conviction of the offense for which I
have been charged will have the consequences of deportation, exclusion
from admission to the United States or a denial of naturalization.” Prior
to changing his pleas, defendant was asked by the court, “Do you
understand if you’re not a citizen of the United States that conviction of
these offenses could lead to deportation, denial of naturalization, or
exclusion from admission to the United States pursuant to the laws of the
United States.” (Italics added.) Defendant replied, “Yes, sir.” Imposition
of sentence was suspended, and defendant was admitted to three years’
probation upon specified conditions.
Defendant completed probation successfully. He was therefore no
longer deemed in constructive custody, meaning that relief in habeas
corpus was not available. (See People v. DeJesus (2019) 37 Cal.App.5th
1124, 1130-1131.) In order “to ‘fill [this] gap in California criminal
procedure’ ” where there was no “means to challenge a conviction by a
person facing possible deportation who is no longer in criminal
custody,” the Legislature enacted section 1473.7. (See People v. Fryhaat
(2019) 35 Cal.App.5th 969, 976.)
Section 1473.7 authorizes a motion to vacate a conviction on various
grounds. One of those grounds, the one relevant here, is the conviction “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. A finding of legal invalidity may, but need not, include a
finding of ineffective assistance of counsel.” (§ 1473.7, subd. (a)(1).)
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In October 2019, defendant filed a motion to vacate conviction or
sentence. The supporting particulars in an attached declaration were
that, prior to changing his pleas he asked his attorney, Alexander Cross,
“what the immigration consequences of conviction would be, and the
attorney said he did not know and that defendant should ask an
immigration attorney.” The motion set forth the “will” language of the
change of plea form and the “could” language used by the court.
Defendant concluded: “If he had been informed by Mr. Cross or by the
judge that deportation would be mandatory, he would not have pleaded
nolo contendere and would have told Mr. Cross to negotiate for a plea
bargain that would not entail mandatory deportation or that he wanted to
go to trial.”
The prosecution filed opposition indicating this was “a he said—he
said circumstance. The court has to decide whom to believe. On one hand,
there is a convicted felon, a convicted fraudster, a liar, and the person with
the burden [of proof]. On the other hand, there is an attorney [i.e., Cross]
who told the People that it is his (obvious) standard practice to warn of
immigration consequences in all felony cases . . . .”
The trial court conducted a hearing on the motion. Attorney Cross
testified that, although he had no recollection of the specific details of
defendant’s case, his practice at the time was to advise his clients with the
mandatory language of the change of plea form—that a felony conviction
would result in deportation—but he might have suggested that the client
consult an “immigration attorney.” The court heard argument, and denied
the motion from the bench.
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Among the relevant parts of the denial are the following: “[T]he
colloquy with Judge Davis at the time of the plea and the plea form and
the advice of an attorney, all of that I think was clearly sufficient to place
the defendant on notice that this was an issue. [¶] . . . [¶] The colloquy
with Judge Davis, the plea form, and the discussion with Mr. Cross was
the best advice that was available about the process in 2012.”
“[I]n effect [defendant] was told—I’ll paraphrase—this [i.e., possible
immigration consequences of pleading guilty] is a concern and problem for
you. You should be aware of it, and he said he was; not exact words but
that’s the import of what was said in writing and orally by Judge Davis,
and to some extent by Mr. Cross.”
“But, you know, he was told, hey, this is an issue, do you understand
that? Are you doing this freely and voluntarily[?], and [he] went forward
and entered the plea.
“Based on all that, I find that the process was proper, and the
defendant’s motion is denied.”
Defendant moved for reconsideration, which was denied. Following
its denial, defendant filed a timely notice of appeal from both orders. The
first order is appealable (§§ 1473.7, subd. (f), 1237, subd. (b)); the second is
not, but it can be reviewed on the valid appeal of the first order (Code Civ.
Proc., § 1008, subd. (g); Crotty v. Trader (1996) 50 Cal.App.4th 765, 769).
REVIEW
The parties agree that the standard of review depends upon what
sort of error is asserted. “To the extent that a defendant seeks review of
the denial of a motion to vacate a plea based on violation of a
constitutional right, such as ineffective assistance of counsel under the
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Sixth Amendment, such a violation would implicate a mixed question of
law and fact and therefore we would independently review the denial. . . .
‘[T]o the extent the motion asserts statutory error or a deprivation of
statutory rights, the denial is reviewed for an abuse of discretion.’ ”
(People v. Bravo (2020) 58 Cal.App.5th 1161, 1166-1167 (Bravo), review
granted Mar. 24, 2021, S266777.) With a mixed question, “ ‘[w]e accord
deference to the trial court’s factual determinations if supported by
substantial evidence in the record, but exercise our independent judgment
in deciding whether the facts [establish a constitutional violation].’ ”
(People v. Tapia (2018) 26 Cal.App.5th 942, 950.) As for abuse of
discretion, “a ‘ “decision will not be reversed merely because reasonable
people might disagree. ‘An appellate tribunal is neither authorized nor
warranted in substituting its judgment for the judgment of the trial
court.’ ” ’ . . . [A] trial court does not abuse its discretion unless its
decision is so irrational or arbitrary that no reasonable person could agree
with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Defendant’s opening brief has a single framed argument, namely,
that the trial court “abused its discretion” in denying his motion (and
presumably the motion for reconsideration as well) because it
“misinterpreted the law.” There are a number of sub-arguments.
“First, the Court mistook the legal grounds set forth in the
underlying motion with that of a motion brought under Penal Code
section 1016.5, suggesting that all that was legally required was an
advisement under section 1016.5. Based upon this misunderstanding, the
Court failed to consider the factors that impeded appellant’s ability to
meaningfully understand, defend against, or knowingly accept the actual
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or potential consequences. Further, in denying the motion, the Court
erroneously found in favor of the prosecution’s argument that trial
counsel’s general advisement of uncertain immigration consequences
constituted accurate advice and that was all that was legally required.
Finally, the Court failed to apply the correct standard of prejudice in
denying the motion.”
It is not easy to determine whether defendant is asserting statutory
or constitutional claims. At first glance, by invoking the abuse of
discretion standard, defendant would appear to be getting ready to argue
only statutory claims. On the other hand, defendant does make this
omnibus assertion: “Here, appellant’s plea was invalid based on upon
ineffective assistance of counsel, as appellant was denied his Fifth, Sixth,
and Fourteenth Amendment rights to counsel, due process, and the right
to a fair trial, and the corresponding rights under the state constitution.”
Defendant states that “[a]ll of the grounds raised under section 1473.7[,
subdivision] (a)(1) must be accompanied by proof of prejudice,” only to
apparently repudiate this two sentences later with “[d]efendants do not
need to show they actually could have obtained a more favorable outcome
at trial or in plea negotiations.” He then seems to veer back to a statutory
basis when he asserts the trial court “failed to consider appellant’s
subjective understanding under [section] 1473.7[, subdivision] (a)(1).”
Having carefully examined defendant’s brief, we think the essence of
his position is that he was misadvised of the possible immigration
consequences when he changed his plea in 2012. Defendant did not bring
this argument forward until after section 1473.7 was adopted and
amended. When he concludes that his “case must be considered within the
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broad context of the amended statu[te],” and that he “has affirmatively
established a ‘prejudicial error’ within the meaning of section 1473.7,
subdivision (a)(1),” defendant appears to accept that his claim has a
statutory basis and is to be judged according to the criteria set out in that
statute. Accordingly, defendant’s arguments will be measured against the
abuse of discretion standard, with the exception of claim that he received
ineffective assistance from attorney Cross in 2012.
The heart of this appeal is about two words, the “will” used in the
change of plea form, and the “could” used orally by the trial court.
Since 1978, section 1016.5 has required trial courts to advise
criminal defendants with this language: “If you are not a citizen, you are
hereby advised that conviction of the offense for which you have been
charged may have the consequences of deportation, exclusion from
admission to the United States, or denial of naturalization pursuant to the
laws of the United States.” (§ 1016.5, subd. (a), added by Stats. 1977,
ch. 1088, § 1, italics added.) The trial court is not required to go beyond
this language and identify which offenses will result in mandatory
deportation. (See People v. Gutierrez (2003) 106 Cal.App.4th 169, 174,
fn. 4.) Although the trial court in 2012 deviated from this language,
changing “could” for “may” and putting it in the form of an interrogatory,
neither party suggests this modification subverted the statutory goal, or
that the court failed to discharge its duty under section 1016.5. (See
People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 207-208
[substantial compliance will satisfy § 1016.5].)
And on the subject of the trial court, there is no basis for defendant
to assert that the court was using section 1016.5 glasses to examine a
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section 1473.7 claim. Section 1016.5 was never mentioned at either of the
hearings. Moreover, a defendant denied leave under section 1016.5—or
section 1018, which is the general all-purpose statute—to withdraw a plea
of guilty or no contest must have that decision reviewed under the same
abuse of discretion standard (People v. Patterson (2017) 2 Cal.5th 885, 894;
Bravo, supra, 58 Cal.App.5th at p. 1167), prejudice must be demonstrated
(People v. Totari (2002) 28 Cal.4th 876, 884; Bravo, at pp. 1167-1168), and
any findings of fact will be upheld if supported by substantial evidence
(People v. Fairbank (1997) 16 Cal.4th 1223, 1254), the same standard for
judging mixed questions under section 1473.7.
The record does not reveal why the San Mateo County Superior
Court form entitled “Declaration Concerning A Plea Or Change Of Plea To
Guilty Or Nolo Contendere; Finding And Order (Felony)” employs the
more emphatic language that “conviction of the offense for which I have
been charged will have the consequences of deportation, exclusion from
admission to the United States or a denial of naturalization.” (Boldface
and underscoring in original.) Whatever the genealogy, both sides
eventually accepted that this was the essence of what defendant was told
by attorney Cross prior to changing his pleas in 2012. This dooms any
effort to establish ineffectiveness of counsel.
The entire thrust of defendant’s arguments appears to be that use of
“could” on one hand, and “will” on the other, created a confusion that
amounts 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
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contendere” within the meaning of section 1473.7. The trial court did not
agree, and neither do we.
According to defendant, Cross was too emphatic in advising that a
felony conviction would automatically lead to deportation: “a review of the
Immigration Legal Resource chart from 2013 advises that the felony
charges of insurance fraud under section 550, [subdivision] (b)(3), grand
theft under section 487[, subdivision] (a) and forgery under
section 470[, subdivision] (a) were not per se aggravated felonies resulting
in automatic deportation.” But an aggravated felony is only one of the
grounds for deportation (8 U.S.C. § 1227(a)(2)(A)(iii)); another ground is
committing “crimes of moral turpitude” (id., (a)(2)(A)(i), aka CIMT), and
defendant concedes that “each of the charged offenses [against him]
constituted ‘crimes of moral turpitude.’ [Citation.] Appellant was not
advised that each of the charged offenses constituted a CIMT, and he could
not afford to accept a plea to a CIMT as charged . . . . Without this basic
information, appellant did not actually understand the immigration
consequences or the importance of the plea negotiation process.”
“Further, this . . . misadvice and misunderstanding prevented
appellant from defending against the immigration consequences of the
plea. Misinformed, appellant would have erroneously believed that there
was no point in further negotiations with the prosecution, as he would
have been informed that any alternate ‘felony’ plea that he could negotiate
would also result in certain deportation.”
This is faulty reasoning. Regardless of the statutory classification,
each of the 11 offenses charges against defendant was a crime involving
moral turpitude and thus would be grounds for deporting him or refusing
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him re-entry. (See 8 U.S.C. § 1182(a)(2)(A)(i)(I).) This is the plain import
of what Cross told defendant, which in turn reiterated what defendant was
also told by the change of plea form. (See People v. Olvera (2018)
24 Cal.App.5th 1112, 1117 [“The admonition . . . was unequivocal and
accurate”].) Because it is counsel’s advice that is examined (see People v.
Patterson, supra, 2 Cal.5th at p. 896; cf. § 1016.3, subd. (a) [“Defense
counsel shall provide accurate and affirmative advice about the
immigration consequences of a proposed disposition”]), the less emphatic
language used by the trial court in 2012 cannot be used to manufacture
confusion in defendant’s mind, for purposes of section 1473.7. Thus,
defendant was not misadvised by Cross. On the contrary Cross gave
defendant correct information—that by pleading guilty he would be
subject to deportation and denial of re-entry.
As for the issue of possible “further negotiations” with the
prosecution, defendant has only pure speculation. Given the opportunity
at the hearing, he did not cross-examine attorney Cross on this subject.
He does not specify what lesser included offenses might have been sought.
If all the charged offenses would support deportation, what was there to
negotiate? If the prosecution was determined on deportation, that might
explain why it was willing to dismiss seven counts and accept such a
lenient disposition. Defendant could certainly believe that this was the
best disposition he could reasonably expect in the circumstances.
If deportation was, as defendant now suggests, an absolutely
unacceptable outcome, the question must be asked: then why did he
accept the plea bargain when it clearly entailed deportation? We note that
there is nothing in the record to suggest that defendant has, or in 2012
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had, any difficulty understanding or communicating in English. When
defendant changed pleas in 2012, he did not require an interpreter.
Although he asserted in his declaration to his petition that attorney
Cross did not provide a clear answer on the issue of immigration
consequences, he dropped this claim after Cross testified. Defendant’s
declaration is short, and short on details. Most significantly, it does not
set forth defendant’s reaction to the plain language of the change of plea
form. The trial court could reasonably draw negative inferences against
defendant because of his failure to address that issue. (See Evid. Code,
§ 413.)
The boilerplate language of the motion that “If he had been informed
by Mr. Cross or by the judge that deportation would be mandatory, he
would not have pleaded nolo contendere” is clearly self-serving. It “must
be corroborated independently by objective evidence,” and as such it “is
insufficient in and of itself to sustain the defendant’s burden of proof.” (In
re Alvernaz (1992) 2 Cal.4th 924, 938; accord, People v. Martinez (2013) 57
Cal.4th 555, 565; Bravo, supra, 58 Cal.App.5th at pp. 1171-1172; cf. Lee v.
United States (2017) __U.S. __, __ [137 S.Ct. 1958, 1967] [“Courts should
not upset a plea solely because of post hoc assertions from a defendant
about how he would have pleaded”].)
Again, the skimpiness of the declaration works against defendant.
For example, he provides no history of discussions between the prosecution
and the defense, nothing which supports a claim that the prosecution
would have been amenable to re-opening negotiations.
Defendant’s boilerplate conclusion is also belied by his own conduct.
In 2017, five years after he entered the nolo contendere pleas, defendant
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again pled nolo contendere to another felony insurance fraud count, using
the same change of plea form, with the identical “will” language, and the
court again reciting the language of section 1016.5. Defendant was again
admitted to probation. (This conviction was not challenged by defendant’s
motion because the period of probation had not been completed.) In other
words, he did the exact same thing years later. The trial court could infer
from this episode that defendant had concluded the mandatory
deportation language was toothless and could be safely ignored.
There does not appear to be a basis in the record for defendant
claiming “subjective misunderstanding” that was prejudicial to his
interests.
In light of the foregoing, and regardless of the standard of review
employed, we conclude there is no basis for reversal. Defendant has not
demonstrated the reasonable probability that he would not have entered
nolo contendere pleas in 2012 had he been differently advised.
DISPOSITION
The purported appeal from the order denying defendant’s motion for
reconsideration is dismissed. The order denying defendant’s motion to
vacate sentence or conviction is affirmed.
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STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
People v. Barrera-Izaba (A159282)
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