People v. Tran CA2/7 ( 2022 )

Filed 4/11/22 P. v. Tran CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B308320
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA079094)
v.
LAP PHUOC TRAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Christian R. Gullon, Judge. Affirmed.
Law Offices of Gita B. Kapur & Associates and Geoffrey
Pogue, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Michael J. Wise, Deputy Attorney
General, for Plaintiff and Respondent.
_______________________
INTRODUCTION
In 2007, Lap Phuoc Tran was facing up to seven years in
prison, pleaded guilty under a negotiated plea agreement and
received a prison term of three years. Before his plea, he signed
an advisement of rights, waiver and plea form. He acknowledged
that if he was not a citizen of the United States, his plea would
result in deportation, exclusion from admission or reentry, and
denial of naturalization or amnesty in the United States.
Thirteen years later, he moved to vacate his conviction
under Penal Code sections 1016.5 and 1473.7, subdivision (a)(1),
arguing that his advisement was inadequate and that had he
understood he would be deported, he would not have pleaded
guilty.1 The trial court denied his motion.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Tran’s 1995 Conviction, 1995 Application for
Naturalization and 2019 Motion To Vacate His Conviction
In May 1995, Tran was convicted of selling, transporting or
offering to sell a controlled substance, in violation of Health and
Safety Code section 11352, subdivision (a), in an unrelated case.
Before this conviction, Tran had applied to become a
naturalized United States citizen. In August 1996, the
Immigration and Naturalization Service (INS), now subsumed
into the Department of Homeland Security (DHS), denied his
application because he was still on probation for his 1995
conviction. INS informed Tran that the denial was “without
1 Undesignated statutory references are to the Penal Code.
2
prejudice,” and he “appear[ed] to be eligible for naturalization on
or after 5-2-98, and [he could] file a new application then.”
In September 2019, Tran filed a motion to vacate his 1995
conviction under sections 1016.5 and 1473.7. In December 2019,
the trial court granted Tran’s motion under section 1016.5 and
found the request for relief under section 1473.7 moot. The court
vacated the conviction and set aside the plea. After the People
announced they could not proceed, the court granted Tran’s
motion to dismiss the case under section 1382.
B. Tran’s 2007 Negotiated Plea Agreement and Conviction
In May 2007, the Los Angeles County District Attorney’s
Office filed a felony complaint against Tran, alleging two counts:
transportation of a controlled substance in violation of Health
and Safety Code section 11379, subdivision (a), (count 1) and
possession of a controlled substance for sale in violation of Health
and Safety Code section 11378 (count 2). As to both counts, the
district attorney alleged Tran’s 1995 conviction was a prior
conviction under Health and Safety Code section 11370.2,
subdivision (a), which provides for a three-year enhancement.
Tran faced a maximum prison term of seven years.
Donald Rance Welch, privately retained counsel,
represented Tran.
In June 2007, Tran agreed to a negotiated disposition for a
three-year prison sentence. He signed a standard “Felony
Advisement of Rights, Waiver, and Plea Form” (plea form).
Under the negotiated plea agreement, Tran would plead guilty to
count 1, without admitting any enhancement allegations, in
exchange for a three-year prison sentence. He initialed the form
next to the advisement of the immigration consequences of his
plea that if he was “not a citizen of the United States, [he] must
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expect [his] plea of guilty or no contest will result in [his]
deportation, exclusion from admission or reentry to the United
States, and denial of naturalization and amnesty.” Tran also
initialed the form next to the acknowledgment that he “had a full
opportunity to discuss with [his] attorney . . . the consequences of
[his] plea.” Above his signature on the form, Tran acknowledged
he had “read and initialed each of the paragraphs above and
discussed them with [his] attorney. [His] initials mean that [he
has] read, understand[s] and agree[s] with what is stated in the
paragraph.” Welch also signed the form stating, “[Welch has]
reviewed this form with [his] client. [Welch has] explained . . .
the consequences of the plea.”
On the same day, the trial court held a plea hearing. The
court began by asking Tran if he read and understood the plea
form, to which Tran responded, “Yes.” The court asked Tran if
after reading the form he had any questions about any of his
rights or the consequences of his plea. Tran responded, “No.”
The court accepted Tran’s form.
Regarding immigration consequences, the district attorney
asked Tran, “I don’t know if this applies to you or not, but if
you’re not a citizen of the United States, a conviction for this
offense will have the consequences of denial of naturalization,
denial of entry, denial of citizenship, and denial of amnesty. Do
you understand that?” Tran responded, “Yes, ma’am.”
The district attorney confirmed Tran was providing a Cruz
waiver to remain out of custody before sentencing so he could be
present for the birth of his child.2
2 See People v. Cruz (1988) 44 Cal.3d 1247.
4
Tran pleaded guilty to count 1. The court said it “again will
accept the plea . . . .”
For his Cruz waiver, Tran agreed to plead guilty to count 2
and admit the prior conviction allegation, with the understanding
that count and allegation would be dismissed when he returned
for sentencing.
Regarding immigration consequences, the court said, “I am
required to tell you if you’re not a citizen of this country, you’ll be
denied rights to citizenship, naturalization, or the right of re-
entry should you leave the country and then thereafter seek to
return.” The court asked if Tran understood his rights and the
consequences of his plea, and Tran responded, “Yes, sir.”
Tran pleaded guilty to count 2 and admitted the prior
conviction allegation. In August 2007, Tran was sentenced to
three years in state prison.
C. Tran’s 2009 Notice To Appear and Final Removal Order
In March 2009, DHS served Tran with a Notice to Appear
for removal proceedings under section 240 of the Immigration
and Nationality Act, charging him as removable based on his
June 2007 conviction. In April 2009, an immigration judge
ordered Tran’s removal to Vietnam. Since July 2009, Tran has
been permitted to continue residing in the United States under
an Order of Supervision.3
3 The Order of Supervision states Tran was being placed
under supervision because the agency “has not effected your
deportation or removal during the period prescribed by law . . . .”
Tran explains in his opening brief that Immigration and Customs
Enforcement has been unable “to effectuate [his] removal order
5
D. Tran’s 2020 Motion To Vacate His 2007 Conviction
According to Tran, he first learned of “the actual
immigration consequences of [his 2007] conviction” in February
2009 when he was placed in removal proceedings. Tran sought
legal counsel in February 2018, who informed him of the
possibility of post-conviction relief under section 1473.7,
subdivision (a)(1).
In March 2020, approximately 13 years after his conviction,
Tran filed a motion to vacate his 2007 conviction under sections
1016.5 and 1473.7, subdivision (a)(1). Tran argued the trial court
failed to advise him on the record of the immigration
consequences of his plea, which damaged his ability to
meaningfully understand, defend against, or knowingly accept
the adverse immigration consequences of his guilty plea.
In support of his motion, Tran submitted a declaration
describing his understanding of the immigration consequences
when he entered his guilty plea in 2007. Tran explained he did
not understand that by pleading guilty, he would be subjected to
deportation and permanent separation from his family and that
being “deported to Vietnam due to [his] guilty plea was not
something [he] had considered.” Tran explained he was 30 years
old when he entered his plea in 2007, at which time he had been
living in the United States for 30 years, was a legal permanent
resident (his original status had been asylee), had two children
from a prior relationship, was expecting his first child with his
due to the state of international relations between the United
States and Vietnam . . . .” Tran was released, pending
deportation or removal, on certain conditions, including that he
“appear in person at the time and place specified, upon each and
every request of the Service, . . . for deportation or removal.”
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wife and had never been back to Vietnam. Had he known of the
immigration consequences that would result from his conviction,
“[i]t would have greatly impacted [his] decisionmaking process.”
Tran maintained he would not have pleaded guilty and instead
would have made further inquiries with his attorney, sought an
alternative plea, or if none were available, he “would have
preferred to take [his] case to trial.” Tran remembered his
“attorney telling [him] that the plea offer was good because if
[Tran] took [his] case to trial then [he] would likely lose and be
facing a longer prison sentence.” Tran did not remember
discussing his “immigration status or the specific immigration
consequences of the charges” with his attorney. Tran said, “[His]
attorney never informed [him] that [Tran’s] conviction in this
case would make [him] inadmissible to the United States, would
prevent [him] from being able to naturalize, and ultimately lead
to [his] deportation” or that it would exclude him from applying
for various forms of relief from removal. According to Tran, since
his conviction in 2007, he had “completely turned [his] life
around,” had steady employment and provided for his family.
Deportation would cause his family to “suffer an insurmountable
amount of emotional and financial hardship.”
Tran also supported his motion with naturalization
certificates for his parents and birth certificates for his three
younger siblings and two children born in the United States, all
dated before his plea. In addition, he submitted his marriage
certificate (his wife was born in the United States), a birth
certificate for his third child born in the United States and letters
from his wife, children, parents, siblings and employer all dated
after his plea.
7
The trial court held a hearing in September 2020. The
court explained its understanding that “as a baseline before [the
court allows] a withdrawal of a plea,” there has to be an
“imminent” adverse immigration consequence. Given Tran’s
removal order had been in place for 11 years without being
executed, the court inquired about the existence of an “imminent”
harm. The court also asked about evidence “at the time of the
plea that there would have been some other issue that would
have changed” Tran’s decision to plead guilty. The court
observed that at the time of his arrest Tran “admitted to selling
the dope [and] [s]aid he was doing it to pay for child support.”
The court noted the absence of a declaration from Welch, Tran’s
plea counsel.
Tran primarily argued that the trial court and the district
attorney did not substantially comply with the immigration
advisement requirement of section 1016.5 because they failed to
include deportation as one of the consequences. Tran also argued
that combined with the court’s failure to comply with section
1016.5, the notice to appear and removal order were sufficient to
establish adverse immigration consequences resulting from
Tran’s guilty plea. Further, given the removal order, Tran
“can be picked up and taken back into ICE detention at any
moment . . . .”
The People did not file an opposition, but at the hearing,
pointed out that “there was a plea form in there and that [the
prosecutor] did advise him of the consequences.”
The trial court orally denied Tran’s motion without
explaining why.
8
DISCUSSION
On appeal, Tran argues the trial court erred in denying his
motion to vacate his conviction under sections 1016.5 and 1473.7,
subdivision (a)(1).
But we conclude there was no error because Tran failed to
establish the prejudice required under sections 1016.5 and
1473.7, subdivision (a)(1).
A. Governing Law and Standard of Review
1. Section 1016.5
Section 1016.5 requires that the trial court advise the
defendant of possible adverse immigration consequences before
accepting a guilty or no contest plea. Specifically, “if the
defendant is not a citizen of this country, conviction of the
charged offense ‘may have the consequences of deportation,
exclusion from admission to the United States, or denial of
naturalization . . . .’” (People v. Arriaga (2014) 58 Cal.4th 950,
957; see § 1016.5, subd. (a).)
Under section 1016.5, when a court does not advise a
defendant, who is not a United States citizen, of possible adverse
immigration consequences before accepting a plea, the defendant
may have his conviction vacated and withdraw his plea: “‘If . . .
the court fails to advise the defendant as required by this section
and the defendant shows that conviction of the offense to which
[the] defendant pleaded guilty or nolo contendere may have the
consequences for the defendant of deportation, exclusion from
admission to the United States, or denial of naturalization . . . the
court, on [the] defendant’s motion, shall vacate the judgment and
permit the defendant to withdraw the plea of guilty or nolo
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contendere, and enter a plea of not guilty.’” (Arriaga, supra, 58
Cal.4th at p. 957, quoting § 1016.5, subd. (b).)
A defendant seeking relief under section 1016.5 must
establish three elements: “(1) that the advisements were not
given; (2) that the conviction may result in adverse immigration
consequences; and (3) that the defendant would not have pled
guilty or no contest had proper advisements been given.” (People
v. Arriaga, supra, 58 Cal.4th at pp. 957-958.) “The defendant
bears the burden of demonstrating prejudice.” (People v.
Arendtsz (2016) 247 Cal.App.4th 613, 617.) Specifically, he “must
prove it was reasonably probable he or she would not have
entered a guilty, no contest or nolo contendere plea if properly
advised.” (Ibid.)
We review an order denying a section 1016.5 motion for
abuse of discretion. (People v. Superior Court (Zamudio) (2000)
23 Cal.4th 183, 192; People v. Limon (2009) 179 Cal.App.4th
1514, 1517-1518; accord, People v. Arendtsz, supra, 247
Cal.App.4th at p. 617.) “An exercise of a court’s discretion in an
arbitrary, capricious, or patently absurd manner that results in a
manifest miscarriage of justice constitutes an abuse of
discretion.” (Limon, at p. 1518.)
2. Section 1473.7, subdivision (a)(1)
Under section 1473.7, subdivision (a)(1), a defendant may
vacate a conviction if the defendant establishes a prejudicial
error that prevented the defendant from understanding,
defending against, or knowingly accepting the immigration
consequences of the defendant’s plea: “A person who is no longer
in criminal custody may file a motion to vacate a conviction or
sentence [because] [t]he conviction or sentence is legally invalid
due to prejudicial error damaging the moving party’s ability to
10
meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of a
plea of guilty or nolo contendere.”
A defendant seeking relief under section 1473.7,
subdivision (a)(1), must make two showings: (1) an error
“damaging the moving party’s ability to meaningfully
understand, defend against, or knowingly accept the actual or
potential adverse immigration consequences” of the plea, and (2)
prejudice.4 (People v. Vivar (2021) 11 Cal.5th 510, 528 (Vivar).)
“[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.” (Id. at p. 529.)
A defendant must establish a ground for relief by a
preponderance of the evidence under section 1473.7. (§ 1473.7,
subd. (e)(1).) “[W]hen a defendant seeks to withdraw a plea
based on inadequate advisement of immigration consequences,
we have long required the defendant corroborate such assertions
with ‘“objective evidence.”’” (Vivar, supra, 11 Cal.5th at p. 530.)
“[T]he only finding that the court is required to make is
whether 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.” (§ 1473.7, subd. (e)(4).)
4 There are other requirements that must be met when
moving to vacate a conviction under section 1473.7, subdivision
(a)(1). (§ 1473.7, subds. (b)(2), (e)(1).) But we need not address
them since they are not challenged.
11
We review the denial of a section 1473.7 motion
independently. (Vivar, supra, 11 Cal.5th at pp. 524-525.)
“‘[U]nder independent review, an appellate court exercises its
independent judgment to determine whether the facts satisfy the
rule of law.’ [Citation.] When courts engage in independent
review, they should be mindful that ‘“[i]ndependent review is not
the equivalent of de novo review . . . .”’ (Id. at p. 527.) The
motion is reviewed independently because of “the history of
section 1473.7, the interests at stake in a section 1473.7 motion,
the type of evidence on which a section 1473.7 ruling is likely to
be based, and the relative competence of trial courts and
appellate courts to assess that evidence.” (Ibid.)
B. Tran Failed To Establish Prejudicial Error as Required by
Sections 1016.5 and 1473.7, Subdivision (a)(1)
The trial court did not err by denying Tran’s motion to
vacate his conviction under sections 1016.5 and 1473.7,
subdivision (a)(1). We need not decide whether the proper
advisements were given under section 1016.5 or whether there
was an error damaging his ability to understand the immigration
consequences of his plea under section 1473.7 because he did not
establish by a preponderance of the evidence that any error was
prejudicial.
Tran argues that evidence of his extensive ties to the
United States at the time of his plea sufficiently corroborated his
claim of prejudice. Tran also argues that, although the record
contains no evidence of any discussion regarding an immigration-
neutral plea, the absence of immigration-related concerns in the
probation officer’s report supported both his declaration that he
did not remember any conversation with his attorney about
immigration consequences and the inference that “immigration
12
was something that simply went overlooked” during the plea
proceedings. Finally, Tran argues that his failure to fully
comprehend the immigration consequences of his plea led to his
failure to inquire further or try to negotiate an immigration-
neutral plea.
The People contend Tran’s extensive ties to the United
States, standing alone, were insufficient under Vivar to show
that immigration consequences were his “primary concern”
during plea negotiations. The People argue that Vivar requires
the court to consider the totality of the circumstances, and in the
absence of any evidence, including from Tran’s plea counsel, of
the other Vivar factors, Tran failed to establish prejudice by a
preponderance of the evidence. The People dispute Tran’s
characterization that immigration issues “simply went
overlooked,” pointing to sections of the probation officer’s report
that stated Tran was born in Vietnam and permanently
registered in the United States. As to the possibility of an
immigration-neutral plea, the People note that the evidence
against Tran was “overwhelming” and that the negotiated plea
agreement of three years was a “great deal.”
In Vivar, supra, 11 Cal.5th at pages 529 to 530, the
Supreme Court explained: “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.” (Id. at pp. 529-530.)
13
Considering the totality of the circumstances, as Vivar
requires, Tran’s evidence of ties to the United States at the time
of the plea, without more, is insufficient to corroborate his claim
that immigration consequences were his primary concern at the
time of his plea.5 Tran offered little or no evidence that any of
the other “[f]actors particularly relevant to this inquiry”
supported a reasonable probability that he would have rejected
the negotiated plea deal. (See Vivar, supra, 11 Cal.5th at
pp. 529-530.) There was no evidence that Tran had reason to
believe an immigration-neutral resolution was possible. There
was no evidence that Tran tried to negotiate such a resolution,
and he does not explain, given the charges against him, what an
immigration-neutral resolution could have looked like. The
record also suggests the case against Tran was strong, and Tran’s
trial counsel thought they would lose at trial. It does not appear
Tran had reason to believe an immigration-neutral disposition
was possible.
Tran’s argument that he did not raise immigration issues
during the plea negotiations because he failed to comprehend the
full nature of the adverse immigration consequences of his plea is
belied by the record. Tran knew he was not a citizen. The
admonition in the plea form that Tran initialed and the
prosecutor’s and the court’s oral admonitions, at a minimum,
apprised him that there were some adverse immigration
consequences. His 1995 conviction and the denial of his
5 The question of what evidence is needed to adequately
corroborate a defendant’s claim that immigration consequences
were a paramount concern for purposes of establishing prejudice
under section 1473.7 is currently before the Supreme Court. (See
People v. Espinoza review granted Sept. 15, 2021, S269647.)
14
application for naturalization in 1996 also alerted him, at least
generally, to the possibility of immigration issues resulting from
a conviction.
Tran’s argument that section 1473.7 does not require a
showing that immigration consequences were a defendant’s
“primary focus” during plea negotiations conflicts with Vivar’s
instruction to consider the “importance the defendant placed on
avoiding deportation, [and] the defendant’s priorities in seeking a
plea bargain.” Tran urges that the absence of evidence showing
he was focused on some other issue means he was focused on
immigration consequences. But the record reflects that Tran’s
priority was to minimize his prison sentence. The only
conversation about the plea deal Tran recalled having with his
counsel involved his counsel telling him that the deal was good
because Tran would likely lose at trial and face a longer prison
sentence.
The cases cited by Tran where relief was granted—Vivar,
supra, 11 Cal.5th 510, People v. Mejia (2019) 36 Cal.App.5th 859(Mejia), Lee v. United States (2017) 582 U.S. __ [137 S.Ct. 1958,
198 L.Ed. 2d 476] (Lee), People v. Camacho (2019) 32 Cal.App.5th
998 (Camacho), and People v. Ogunmowo (2018) 23 Cal.App.5th
67 (Ogunmowo)—are distinguishable. In those cases, there was
objective evidence beyond strong ties to the United States
demonstrating that immigration consequences were the
defendant’s priority at the time of the plea and corroborating the
defendant’s later statements that he would not have pleaded had
he known of the adverse immigration consequences. (See Vivar,
supra, 11 Cal.5th at pp. 517, 530, 531 [“Time and again, the
record readily conveys how Vivar would have considered his
immigration status ‘the most important part’ of his decision to
15
plead”; the evidence included “[t]rial counsel’s recollection and
contemporaneous notes” that reflected Vivar’s concerns about the
immigration consequences of his plea; letters Vivar wrote to the
trial court at or near the time of his plea in which he “objected to
his immigration hold and emphasized” his deep family ties to the
United States and said that his counsel failed to advise him that
his plea would result in his deportation, and, had he been
properly advised, he would not have pleaded guilty to the charge;
the testimony of an immigration expert witness who established
Vivar could have entered a plea agreement avoiding mandatory
deportation]; Camacho, supra, 32 Cal.App.5th at pp. 1002-1003
[evidence included plea counsel’s testimony that he discussed
immigration consequences with all his clients and that he told
Camacho “‘because of his immigration problems, maybe the court
would entertain a motion to terminate early after maybe a year
and a half and expungement, so that might help’”]; Lee, supra,
137 S.Ct. 1958 at pp. 1963, 1960 [in the context of determining
prejudice resulting from a Sixth Amendment violation based on
ineffective assistance of counsel, the evidence included testimony
from Lee and plea counsel that “‘deportation was the
determinative issue in Lee’s decision whether to accept the plea’”;
plea counsel further testified that although Lee’s defenses were
weak, “had he known Lee would be deported upon pleading
guilty, he would have advised him to go to trial”]; Ogunmowo,
supra, 23 Cal.App.5th at pp. 69, 73 [evidence included an
affidavit from plea counsel that he was aware Ogunmowo was a
Nigerian native who recently received his “‘green card,’” and he
“‘recall[ed] Mr. Ogunmowo being concerned about what would
happen to his immigration status if he was convicted in this
case’”].) In all these cases, except Mejia, the defendants provided
16
evidence from plea counsel and sometimes additional objective
evidence that the defendants raised the issue of immigration
consequences with their counsel or the trial court before their
plea.6
In Mejia, supra, 36 Cal.App.5th at page 863, no declaration
could be obtained because plea counsel was deceased. But in
addition to the defendant’s deep ties to the United States, there
was other objective evidence to support a reasonable belief the
defendant would not have pleaded guilty had he known of the
adverse immigration consequences. First, the case against the
defendant had evidentiary weaknesses. (Id. at p. 872.) Second,
the defendant in Mejia pleaded “straight up” to the court rather
than under a negotiated disposition, resulting in a probationary
sentence. (Ibid.) Third, the court in Mejia concluded that, even if
the defendant lost at trial, it was “simply not realistic to imagine
that the court would have then imposed the maximum prison
sentence,” given that he had “no criminal record and this was an
unsophisticated crime.” (Id. at p. 873.)
This case differs from Mejia in at least two ways. First,
Tran had the opportunity to negotiate his disposition, and the
evidence against him was strong. Second, the record is devoid of
the type of evidence in Mejia and the other cases Tran cites, such
as evidence from plea counsel, the plea transcript or other
contemporaneous documents that could corroborate Tran’s claims
that he prioritized immigration consequences and that he would
6 The record is silent as to Tran’s attempt, if any, to contact
his plea counsel. Although relief under section 1473.7,
subdivision (a)(1), does not require a declaration from plea
counsel, such a declaration may be a source of corroborating
evidence about a defendant’s priorities when he pleaded guilty.
17
not have accepted the plea deal had he understood the
immigration consequences.
DISPOSITION
The order denying Tran’s motion to vacate his conviction is
affirmed.
IBARRA, J.*
We concur:
SEGAL, Acting P. J.
FEUER, J.
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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