People v. Gutierrez CA2/8 ( 2023 )

Filed 5/25/23 P. v. Gutierrez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B324412
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA073896)
v.
JOSE LUIS GUTIERREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Michael Terrell, Judge. Affirmed.
Law Offices of Shan D. Potts and Shan D. Potts for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rene Judkiewicz,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Jose Luis Gutierrez appeals from
the denial of his motion to vacate pursuant to Penal Code
section 1473.7. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Defendant was charged with two counts of making criminal
threats (Pen. Code, § 422, subd. (a); counts 1 & 2) and one count
of stalking (§ 646.9, subd. (a); count 3) arising from an incident on
June 25, 2012, where he repeatedly yelled at and threatened
harm to his girlfriend, Guadalupe R. Defendant’s girlfriend was
the victim in counts 1 and 3. John G., the husband of one of
Guadalupe’s friends, was the victim in count 2. John and his wife
were allowing Guadalupe to stay with them when defendant
came to their home, pounded on the door and threatened to kill
John.
In September 2012, defendant pled no contest to one count
of making criminal threats. In accordance with the terms of the
plea agreement, the court imposed a three-year prison sentence,
suspended execution of sentence and placed defendant on five
years formal probation. One of the probation terms was that
defendant would be released from custody to a six-month
residential substance abuse treatment facility. The remaining
two felony counts were dismissed.
During the plea colloquy, the court did not discuss the
immigration consequences with defendant. The court asked
defendant if he read the felony advisement of rights, waiver, and
plea form, if he discussed the form with his attorney, and if he
initialed and signed the form himself. Defendant answered yes to
all of those questions. The court then asked defendant if he had
any questions for the court, and defendant said no.
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The felony advisement of rights, waiver, and plea form
signed by defendant contains a heading titled
“CONSEQUENCES OF MY PLEA.” Paragraph 12 under that
heading is titled “Immigration Consequences” and states:
“I understand that if I am not a citizen of the United States, I
must expect my plea of guilty or no contest will result in my
deportation, exclusion from admission or reentry to the United
States, and denial of naturalization and amnesty.” The box next
to paragraph 12 was initialed by defendant.
Defendant completed probation and, in 2017, obtained an
order from the court, pursuant to Penal Code section 17,
subdivision (b) and section 1203.4, reducing his conviction to a
misdemeanor and dismissing the case.
In December 2021, defendant filed a motion to vacate his
conviction pursuant to Penal Code section 1473.7. Defendant
argued he was not told and did not understand that his
conviction would prevent him from renewing his legal permanent
resident status and becoming a naturalized citizen. Defendant
said the mandatory nature of the immigration consequences was
not explained to him.
In support of his motion, defendant submitted a declaration
in which he explained that in 1984, when he was just 14 years
old, his parents brought him to live in the United States and he
has lived here ever since. He obtained a permanent legal
residency card in 1998. Defendant said he hoped he would never
have “to return to the poverty and violence in Mexico.”
Defendant said that when he accepted the plea, no alternative
dispositions were explained to him, nor was the fact that the
immigration consequences were mandatory. He said he
understood only that he would not be allowed to re-enter the
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United States but since he had no plans to leave, he accepted that
consequence. Defendant said he would have been willing to go to
trial or to accept additional punishment, including additional
time in custody, to avoid deportation and being sent away
permanently from his family. Finally, defendant’s declaration
included a hearsay statement from his former attorney,
Mr. Duggan, who, according to defendant, said he would submit a
declaration stating he had not explained the mandatory nature of
the immigration consequences. However, defendant stated that
despite repeated additional attempts to contact Mr. Duggan,
defendant and his current counsel were unable to reach him to
obtain the declaration. Despite that, defendant attached an
unsigned “declaration” of Mr. Duggan in support of his motion.
Defendant also submitted several exhibits, including the
transcript of the plea colloquy in September 2012, the 2017 order
dismissing defendant’s conviction, correspondence attempting to
reach Mr. Duggan, and a copy of his permanent legal residency
card showing his legal resident status at the time of the plea.
The correspondence to Mr. Duggan attached as an exhibit
included the draft declaration forwarded for him to sign which
was never signed and returned.
The District Attorney’s Office opposed defendant’s motion,
arguing that he received proper advisement of the mandatory
nature of the immigration consequences of his plea in the waiver
form he signed and acknowledged during the plea colloquy.
The court denied defendant’s motion on the ground he
failed to show prejudice. This appeal followed.
DISCUSSION
Defendant contends the trial court erred in finding he
failed to show prejudice. Our review of the court’s denial is de
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novo. (People v. Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).)
We exercise our “ ‘ “independent judgment to determine whether
the facts satisfy the rule of law.” ’ ” (Id. at pp. 319–320.) Where,
as here, there was no evidentiary hearing, “ ‘it is for the appellate
court to decide, based on its independent judgment, whether the
facts establish prejudice under [Penal Code] section 1473.7.’ ”
(Id. at p. 320.)
The Supreme Court recently reaffirmed what a defendant
must show in moving to vacate a conviction under Penal Code
section 1473.7. “To prevail under section 1473.7, a defendant
must demonstrate that his conviction is ‘legally invalid due to
prejudicial error damaging [his or her] 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).) The defendant must first show
that he did not meaningfully understand the immigration
consequences of his plea. Next, the defendant must show that his
misunderstanding constituted prejudicial error. ‘[P]rejudic[i]al
error . . . 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.’ ” (Espinoza, supra, 14 Cal.5th at p. 319.)
1. Defendant Did Not Show He Lacked a Meaningful
Understanding of the Immigration Consequences of
His Plea.
Defendant says he did not fully understand the mandatory
nature of the consequences he would face. However, the plea
form defendant signed used mandatory language: “I understand
that if I am not a citizen of the United States, I must expect my
plea of guilty or no contest will result in my deportation,
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exclusion from admission or reentry to the United States, and
denial of naturalization and amnesty.” (Italics added.)
Defendant initialed this paragraph and signed the form.
In response to questions from the judge who took his plea
in 2012, defendant said he had read and discussed the plea form
with his privately retained attorney, and he said he did not have
any questions to ask the court. Nothing in the record indicates
defendant did not read or understand English or that he had any
difficulties communicating with his attorney. Defendant did not
use an interpreter. Nor does defendant’s declaration state any
facts about his conversation with his attorney that would
undermine his affirmative statements to the court in 2012 that
he and his attorney had in fact discussed the form.
This case is unlike People v. Manzanilla (2022)
80 Cal.App.5th 891, 906 (Manzanilla), where the defendant
declared that “when counsel went over the plea waiver form with
him in 2014, he ‘was having a really hard time seeing because of
my cataracts. I was taking a long time to read everything . . . she
was standing over me and asking me to hurry up. She said it
covered everything we had already talked about. I initialed and
she walked away with the form.’ ” (Id. at p. 901.) Manzanilla
also presented copies of the contemporaneous notes made by his
attorney of her meeting with him which showed that she told him
he would lose his permanent resident status, and that he would
have a hearing before an immigration court—but not that he was
subject to mandatory deportation. (Id. at p. 907.) And, less than
a month after entering the plea, Manzanilla sent a letter to the
court seeking to revoke the plea because he had not understood
the immigration consequences. (Id. at pp. 899–900.)
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2. Defendant Did Not Show Prejudicial Error.
Espinoza instructs that “ ‘[t]o determine whether there is a
reasonable probability a defendant would have rejected a plea
offer if he had understood its immigration consequences, courts
must ‘consider the totality of the circumstances,’ ” and that
factors “ ‘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.’ ”
(Espinoza, supra, 14 Cal.5th at p. 320.)
Defendant has lived in the United States since 1984. But
he offered no other evidence about his ties to the United States,
except a bare reference to having family here in 2012 and that he
is his “family’s financial and emotional support.” He recited no
facts about his particular circumstances to explain the
importance to him of avoiding deportation, except to say he did
not want to return to the poverty and violence in Mexico.
There is nothing in the record to support a finding that
defendant had any reason to expect or hope that an alternative
plea deal without immigration consequences could have been
obtained. Defendant was facing three felony charges involving
two separate victims and received a favorable disposition in
which the court imposed but suspended a three-year high term
sentence, granted probation and dismissed the remaining two
counts. Defendant did not serve any additional time in custody
and was released to a residential substance abuse treatment
program. Defendant points to no facts that would support a
reasonable inference he could have negotiated an immigration-
neutral disposition.
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The lack of prejudice also distinguishes this case from
Manzanilla. The defendant in Manzanilla may have been able to
negotiate a plea agreement with no negative immigration
consequences. The prosecution offered a disposition that
required defendant to serve 365 days in jail. His attorney failed
to even ask for a one-day reduction to 364 days which would have
eliminated his conviction qualifying as an aggravated felony and
would have made him eligible for discretionary relief from
deportation. (Manzanilla, supra, 80 Cal.App.5th at pp. 904, 908–
909.)
DISPOSITION
The order denying Jose Luis Gutierrez’s motion to vacate is
affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
VIRAMONTES, J.
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