People v. Vasquez CA2/8 ( 2022 )

Filed 5/25/22 P. v. Vasquez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE, B313809
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA061406)
v.
ALVARO ALEXIS VASQUEZ
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Michael D. Carter, Judge. Affirmed.
U.S. Law Center and Sanjay Sobti for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Roberta L. Davis and Stephanie A. Miyoshi,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
In 2019, appellant Alvaro Alexis Vasquez filed a motion to
vacate his 2005 conviction for robbery, as he was currently facing
deportation proceedings due to the conviction. He claimed he did
not understand the adverse immigration consequences of
pleading no contest in 2005 because he was not a “fluent English
speaker” and did not have a Spanish interpreter present at the
hearings. The trial court denied the motion without prejudice.
In 2020, appellant filed his second motion to vacate the
2005 conviction. He claimed to have new evidence in support of
his motion. After argument, the trial court found appellant’s new
evidence was insufficient, and denied the second motion with
prejudice. Appellant appeals from the order denying his second
motion.
We find appellant’s arguments unavailing and affirm the
trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
I. 2005 Conviction for Robbery
Appellant was born in El Salvador. In 1997, he moved to
the United States when he was 11 years old. On May 18, 2004,
appellant, then 18 years old, acquired his status as a legal
permanent resident in the United States.
One year later, on May 19, 2005, the People filed a felony
complaint against appellant, charging him with the crime of
second degree robbery for “unlawfully, and by means of force and
fear” taking personal property from victim Kim Gyu, in violation
of Penal Code1 section 211. The complaint also alleged, under
1 Undesignated statutory references are to the Penal Code.
2
section 12022, subdivision (d), that a principal (not appellant)
was armed with a firearm during the commission of the robbery,
and that appellant knew the principal was armed.2
Four hearings occurred in this criminal case—on
September 30, 2005, October 11, 2005, October 13, 2005, and
October 26, 2005. We were not provided a copy of the reporter’s
transcript of these four proceedings.3 We glean the following
from the minute orders of those proceedings.
On September 30, 2005, appellant “state[d] [his] true name
as charged.” Appellant was represented by public defender
Stephan Boysaw. Appellant was “advised of the following rights
orally” including: “If you are not a citizen, you are hereby
advised that a conviction of the offense for which you have been
charged will have the consequences of deportation, exclusion from
admission to the United States, or denial of naturalization
pursuant to the laws of the United States.” The September 30,
2005 minute order does not state an interpreter was present at
the hearing.
At the early disposition hearing held October 11, 2005,
appellant was present with court-appointed public defender
2 On March 27, 2005, appellant and co-companion “pointed a
handgun at victim inside a parking structure” and “fled with
victim’s money, CDL and wristwatch.”
3 The record provides that the court reporter listed for the
hearing held October 26, 2005 has “retired from the Los Angeles
Superior Court and is no longer preparing transcripts.” Per
Government Code section 69955, subdivision (e), “court reporters’
notes may be destroyed upon the order of the court after 10 years
from the taking of the notes in criminal proceedings.”
3
Steven E. Kaplan (Kaplan). The minute order does not state an
interpreter was present.
At the preliminary hearing held October 13, 2005,
appellant was present in court with counsel Kaplan; no
interpreter was identified as present in court. It is noted
appellant “is to retain private counsel to be present on the next
court date.”
On October 26, 2005, appellant was present in court along
with his appointed counsel Kaplan; once again, an interpreter
was not listed in the minute order as among those present at the
hearing. Appellant was advised of the effects of a no contest plea.
He was further advised: “If you are not a citizen, you are hereby
advised that a conviction of the offense for which you have been
charged will have the consequences of deportation, exclusion from
admission to the United States, or denial of naturalization
pursuant to the laws of the United States.” Appellant was
advised of and “personally and explicitly” waived his right to a
jury trial; his right to confront and cross-examine witnesses; his
right to subpoena witnesses into court to testify; his right against
self-incrimination. The court found each such waiver knowingly,
understandingly, and explicitly made. Appellant pled no contest.
“Counsel and [appellant] stipulate[d] to the use of the early
disposition report for purposes of sentencing.” The early
disposition probation officer’s report and criminal history
assessment included information from appellant’s girlfriend of
three years, Jasmine Chimil.4 She reported appellant had lived
in Los Angeles County for eight years. He currently lived with
4 It is specifically noted that Jasmine Chimil provided this
information in “Lang: English.”
4
his mother and cousin. His father resided in El Salvador. Chimil
also reported appellant worked as a “full-time stocker” at a
Staples store in Los Angeles for the last 14 months. Appellant
“completed his G.E.D.”; before that, he was a “full-time high
school student.”
The court found appellant guilty, sentenced him to
365 days in county jail, placed him on three years’ formal
probation, and ordered him to pay restitution.
In a later probation report dated June 18, 2008, appellant
told his probation officer he was “working full time at Westlake
Company as a title specialist for the past [two] years.”
II. Appellant’s Petition for Dismissal
Twelve years after his conviction, on December 26, 2017,
appellant filed a petition for dismissal pursuant to section 1203.4,
requesting he be permitted to withdraw his 2005 plea, the finding
of guilt be set aside, and a plea of not guilty be entered and the
action dismissed. The petition alleged he had fulfilled the
conditions of probation for the entire period.
On January 24, 2018, the court denied the petition without
prejudice. The court found appellant “had paid only
approximately $1000 of the $2307.50 owed” to the victim Kim
Gyu, even though appellant “was employed and had the ability to
pay restitution” in full.
III. Deportation / Removal Proceedings
On July 14, 2019, U.S. Immigration and Customs
Enforcement (ICE) officers took appellant into custody and
initiated removal proceedings. Appellant was deemed deportable
under the Immigration and Nationality Act (8 U.S.C.
5
§ 1227(a)(2)(A)(i), (iii)), based on his 2005 robbery conviction, an
aggravated felony and crime involving moral turpitude.
IV. Appellant’s First Motion to Vacate
On September 30, 2019, appellant filed his first motion to
vacate the 2005 conviction pursuant to section 1473.7. Appellant
alleged his “first language is Spanish” and that at “the time of his
plea, [he] was not a fluent English speaker” and “did not have an
interpreter at his hearings.” He alleged he “did not understand
the immigration consequence of his plea because he did not have
an interpreter.” He argued he was prejudiced and his
constitutional rights were violated because he “unknowingly
entered a guilty plea to a conviction that rendered him . . .
deportable.” He alleged he “would not have agreed to the plea
bargain now that he understands [it] has life-destroying
consequences”; the United States “is home for [him]” and his
“entire family lives in the United States,” including his fiancée,
his 12-year-old son5, and his mother.
In support of his motion, appellant submitted his sworn
declaration, a letter from his fiancée Patricia Toscano, a letter
from his former manager at Westlake Financial Services Carlos
Cardona, and letters from family and friends attesting to his
character.
Appellant’s sworn declaration set out the following facts.
Appellant is a citizen of El Salvador, and a United States legal
permanent resident. He was a legal permanent resident at the
time he entered his plea in 2005. His counsel during the 2005
proceedings, i.e., Kaplan, “did not inform [him] that the charge
5 Appellant’s son was born here and is an American citizen.
6
[he] pled to is a deportable charge . . . and that [his] conviction is
a bar to U.S. citizenship.” Also, while appellant’s first language
was Spanish and his English “was not as fluent,” he “did not have
an interpreter at [the] hearings” which precluded him from
understanding the adverse immigration consequences of taking
the plea. He “would have never pleaded guilty and risked
permanent separation from [his] family . . . if [he] had been
advised of the consequences of pleading guilty to the [2005]
charges.” He would have instead opted to proceed to trial.
Patricia Toscano provided the following in her letter: She
is a licensed marriage and family therapist. She has known
appellant for 6.5 years and is his fiancée. She met appellant
when he was “working at Wilshire Credit Consumer while
simultaneously trying to obtain a nutritionist degree from LA
Trade Tech.” During their relationship, he also worked at Lobel
Financial. Toscano and appellant “are currently working on
opening up a Whole-Food Plant Based Restaurant where he
intends to also present seminars about the impact nutrition has
on health and disease and I intend to present seminars on how
nutrition impacts mental health.”
Carlos Cardona, appellant’s former manager at Westlake
Financial Services, stated he interviewed and hired appellant in
2007 “as a customer service agent.” Cardona “saw his potential
and his eagerness to succeed [and] further his career within the
company.” Appellant became a “Title Specialist working directly
with the Department of Motor Vehicles” within a few years.
Appellant was “responsible to perfect our titles as we boarded
new loans.”
V. Hearing and Ruling on First Motion to Vacate
7
On January 17, 2020, the hearing on appellant’s first
motion to vacate took place. We glean the following from the
minute order, as we were not provided a copy of the reporter’s
transcript of the hearing. Appellant’s mother and fiancée
testified. The court took the matter under submission.
On March 3, 2020, the trial court issued its written ruling,
denying the motion without prejudice. It found appellant’s
evidence did not establish by a preponderance of the evidence
that the lack of an interpreter constituted prejudicial error.
The court referred to evidence provided by appellant that it
considered in making its decision—most of which is not provided
in the record before us. The court referred to: 1) appellant’s
sworn declaration; 2) the “testimony of his mother, to the effect
that he spoke only Spanish in the home”; 3) the probation officer’s
early disposition report which said appellant had completed his
G.E.D.; 4) appellant’s high school transcript showing he attended
public middle school and high school from 1997 to 2002 and he
took “English As a Second Language [(ESL)] class most recently
in Fall Semester, 2001–2002”; and 5) a letter from the general
manager at Staples, who stated appellant worked as “an office
supply associate” at Staples since July 2004, whose job duties
included “customer service, stocking shelves and cashiering,” and
who “sometimes train[ed] new associates” since he was “a model
employee.”
The court noted “in all misdemeanor and felony criminal
proceedings, certified interpreters have been available to all non-
English speaking defendants for decades preceding [appellant]’s
case.” The court found while it is possible the court and defense
counsel failed to notice appellant’s English was deficient, it was
“[m]ore likely, defense counsel and the defendant himself did not
8
request an interpreter because it was evident that he did not
need one. This conclusion is supported by the facts that, before
the time of his plea, [appellant] had been attending public schools
. . . for years and had been working in retail as a cashier and
customer service person for at least a year.” The court
emphasized appellant’s “own declaration does not state that he
ever requested an interpreter on any of his three court
appearances.” Based on the foregoing, the court found
appellant’s evidence did not establish that the absence of an
interpreter constituted prejudicial error under the statute.
VI. Appellant’s Second Motion to Vacate
On October 8, 2020, appellant filed his second motion
pursuant to section 1473.7. Appellant essentially made the same
arguments based on the same facts he had alleged in support of
his first motion to vacate. However, he stated he was “refil[ing]
the motion” with “additional evidence” in support, and urged the
court to “reconsider its prior decision and . . . set aside his guilty
plea.”
Appellant submitted, as additional evidence, his high
school transcript. The transcript shows appellant received a C in
his ESL Intermediate class during Fall and Spring semesters in
8th grade (1998–1999). The transcript also shows appellant
received a C in his ESL Advanced class during Fall semester and
an F during Spring semester in 9th grade (2000–2001).
Appellant also submitted, as new evidence, a letter dated
May 8, 2020 from Staples HR Services that confirmed appellant’s
“termination of employment” from Staples on January 11, 2007.
The letter referred to appellant’s former job title as “associate
office supply.” Appellant also provided, as an exhibit, a letter
dated May 19, 2020 from the Registrar’s Office of Pomona Unified
9
School District. The letter verified appellant registered and
attended the Adult and Career Education department’s G.E.D.
program from September to November 2017 for a total of
81.5 hours.
In support of his second motion, appellant submitted a
more recent declaration; for the most part, it set out the same
information as his declaration from the first motion to vacate.
It provided the following additional information: Appellant’s
“primary language at home growing up was Spanish” and his
“entire family speaks only Spanish at home.” He was an ESL
student who “received C grades in the intermediate level and
failed the advanced level.” He took G.E.D. classes in 2017,
“12 years since [his] conviction.” He was “employed at Staples as
a supply stocker” and “did not have work in customer service nor
did [he] have any direct communication with customers.”
On December 18, 2020, appellant filed a supplemental
exhibit for the court’s consideration—notes from Millennium
Medical Associates regarding appellant’s visit two days prior, on
December 16, 2020. The notes state appellant made the
appointment to seek treatment for adult ADHD. The notes
expressly provide: “Specifically, [appellant] state[d] ‘Had enough
dealing with too many racing thoughts and my lack [of] focus has
been very low this past [few] months.’ ” The notes also provide
appellant “state[d] he feels his brain ‘doesn’t stop.’ ”
On April 27, 2021, appellant filed another supplemental
exhibit for the court—the sworn declaration of Kaplan. Kaplan
stated he was appointed to represent appellant when he was
employed as a deputy public defender. He represented appellant
at his plea and sentencing hearing. Kaplan has “no recollection
of the facts of the case” and “no recollection of what [he] did or did
10
not do” in the case. He has “no recollection of discussing
[appellant]’s immigration status” and “no recollection if [he]
provided immigration advisements” to appellant. Kaplan did not
recall if appellant spoke English or Spanish. Kaplan was listed
as an “inactive attorney.”
VII. Hearing and Ruling on Second Motion to Vacate
On May 24, 2021, the trial court heard appellant’s second
motion to vacate. The court explained that because its denial of
the first motion was without prejudice, “you can bring in new
information.” The court would “reconsider” if appellant has
“something new.” It explained “this is not an en banc review”
and it would not go “back to review everything else that . . . [was]
already ruled on” via the first motion. “The only thing [the court
was] considering is what is new and whether or not that would
change the decision.”
During the hearing, the clerk of the court was asked
whether it is “always the practice of the clerk’s office when
preparing a minute order to record whether or not the defendant
was assisted by a Spanish interpreter or interpreter of any
language?” The clerk responded: “Yes. If the defendant is
present and an interpreter was used, we put that in the minute
order.”
After hearing argument, the trial court denied appellant’s
second motion with prejudice. The court found the additional
information appellant provided “is all information that could
have and should have been presented to the court at the time of
the original hearing.” The court “does not find that there is any
new information to change or any new sufficient information to
change the ruling; and the court is going to stand by [the original
court’s] ruling of the denial of the petition.”
11
Appellant timely appealed.
DISCUSSION
I. Applicable Law
Mandatory deportation from the United States is an
immigration consequence when a defendant is convicted of a
crime deemed an aggravated felony under federal immigration
law. (Moncrieffe v. Holder (2013) 569 U.S. 184, 187–188; 8 U.S.C.
§ 1228(c) [aggravated felony is conclusively presumed
deportable].) With respect to appellant’s case, a violation of
section 211 constitutes an aggravated felony, a deportable offense
under federal law. (8 U.S.C. § 1227(a)(2)(A)(iii) [“Any alien who
is convicted of an aggravated felony at any time after admission
is deportable”].)
Section 1473.7 authorizes a person no longer in criminal
custody to file a motion to vacate a conviction or sentence for any
of the following reasons: “(1) 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 conviction or sentence. . . . [¶] 2) Newly discovered evidence
of actual innocence exists that requires vacation of the conviction
or sentence as a matter of law or in the interests of justice.”
(§ 1473.7, subds. (a)(1), (2).) A motion based on newly discovered
evidence must be filed “without undue delay from the date the
moving party discovered, or could have discovered with the
exercise of due diligence, the evidence that provides a basis for
relief under this section.” (Id., subd. (c).)
Effective January 1, 2019, legislative amendments to
section 1473.7 afforded a defendant relief under the statute
12
without a showing of ineffective assistance of counsel under the
Strickland standard. (People v. Camacho (2019) 32 Cal.App.5th
998, 1005.) To establish prejudice, a defendant must show by a
preponderance of the evidence that he did not meaningfully
understand or knowingly accept the actual or potential adverse
immigration consequences of the plea. (Id. at pp. 1010–1011; see
People v. Mejia (2019) 36 Cal.App.5th 859, 862 (Mejia); see People
v. Martinez (2013) 57 Cal.4th 555, 565 (Martinez) [defendant may
show prejudice by convincing the court that he “would have
chosen to lose the benefits of the plea bargain despite the
possibility or probability deportation would nonetheless follow”].)
A fact is proved by a preponderance of the evidence if it is more
likely than not that the fact is true. (People v. Rodriguez (2021)
60 Cal.App.5th 995, 1003.)
The key to section 1473.7 is “ ‘the mindset of the defendant
and what he or she understood—or didn’t understand—at the
time the plea was taken.’ ” (Mejia, supra, 36 Cal.App.5th at
p. 866.) Factors relevant to this inquiry include appellant’s ties
to the United States, the importance appellant placed on avoiding
deportation, appellant’s priorities in seeking a plea bargain, and
whether appellant had reason to believe an immigration-neutral
negotiated disposition was possible. (People v. Vivar (2021)
11 Cal.5th 510, 529–530 (Vivar).)
II. Standard of Review
The California Supreme Court recently determined the
standard of review for section 1473.7 motion proceedings. In
Vivar, the Court endorsed the independent standard of review.
(Vivar, supra, 11 Cal.5th at p. 524.) Under independent review,
an appellate court exercises its independent judgment to
determine whether the facts satisfy the rule of law. (Id. at
13
p. 527.) Independent review is not the equivalent of de novo
review. (Ibid.) An appellate court may not simply second-guess
factual findings that are based on the trial court’s own
observations. (Ibid.) Factual determinations by the trial court
are given particular deference, even though courts reviewing
such claims generally may reach a different conclusion from the
trial court on an independent examination of the evidence even
where the evidence is conflicting. (Ibid.) In section 1473.7
motion proceedings, appellate courts should “give particular
deference to factual findings based on the trial court’s personal
observations of witnesses.” (Id. at pp. 527–528.) Where the facts
derive entirely from written declarations and other documents,
however, there is no reason to conclude the trial court has the
same special purchase on the question at issue; as a practical
matter, the trial court and this court are in the same position in
interpreting written declarations when reviewing a cold record in
a section 1473.7 proceeding. (Id. at p. 528.) Ultimately it is for
the appellate court to decide, based on its independent judgment,
whether the facts establish prejudice under section 1473.7.
(Ibid.)
III. Analysis
Appellant contends the trial court erred when it denied his
motion to vacate the conviction because he satisfied the
requirements of section 1473.7. He repeats his argument that
the absence of a Spanish interpreter during the plea colloquy on
October 26, 2005 constituted prejudicial error affecting his ability
to knowingly and meaningfully understand the adverse
immigration consequences of accepting the plea. He argues:
“Despite the declarations, letters, proof of his prior position [at
Staples], his ESL classes, evidence previously not available that
14
were submitted by [appellant], the [c]ourt failed and refused to
consider these as new evidence.” He claims the court
“stonewalled [appellant]’s arguments with the only explanation
that [it] did not want to disturb the prior decision.”
Section 1473.7, subdivision (a)(1), requires appellant to
show that his “ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse
immigration consequences of a conviction or sentence” was
damaged by an error. (Italics added.) Appellant has failed to do
so.
We note the absence of a reporter’s transcript for
appellant’s hearings prevents us from reviewing any discussions
held on the record, as well as any advisements or information on
adverse immigration consequences that may have been given
other than what was noted in the minute order. Also, Kaplan’s
declaration was not informative, as he does not recall any
information pertaining to his representation of appellant. Thus,
we can only speculate as to why there was no interpreter
assisting appellant during his criminal case.
We are not persuaded by appellant’s argument that the
absence of an interpreter at the plea prejudiced him because he
was not fluent in English. The only evidence in support is
appellant’s declaration. An appellant seeking to set aside a plea
must do more than simply claim he did not understand the
immigration consequences of the plea. (People v. Abdelsalam
(2022) 73 Cal.App.5th 654, 664 (Abdelsalam).) The claim must be
corroborated by objective evidence beyond appellant’s self-serving
statements. (Ibid.) “It is up to the trial court to determine
whether the defendant’s assertion is credible, and the court may
reject an assertion that is not supported by an explanation or
15
other corroborating circumstances.” (Martinez, supra, 57 Cal.4th
at p. 565.) We find it telling that appellant’s own declaration
does not state that he ever requested an interpreter during any of
the four proceedings held in 2005.
Similarly, we find unpersuasive appellant’s assertion that
had he been properly advised he was facing mandatory
deportation, he would have insisted on an immigration-neutral
disposition and, failing that, gone to trial instead of accepting the
plea agreement. Courts should not upset a plea solely because of
post hoc assertions from a defendant about how he would have
pleaded but for the deficiencies; judges should instead look to
contemporaneous evidence to substantiate a defendant’s
expressed preferences. (People v. Ogunmowo (2018)
23 Cal.App.5th 67, 78.)
Relying on contemporaneous evidence in the record,
appellant’s girlfriend at the time reported that he had “completed
his G.E.D.” after attending high school full-time. This tends to
indicate appellant understood English to a reasonable extent.
Appellant submitted as new evidence via his second motion a
letter dated May 19, 2020 from Pomona Unified School District’s
Registrar’s Office that specified appellant registered and
attended their G.E.D. program from September to November
2017. He alleged this shows he had not taken a G.E.D. class
until 12 years after his conviction. However, this does not
disprove whether appellant had completed his G.E.D. via another
program or school prior to the 2005 proceedings, as stated by his
then-girlfriend of three years.
Relying on other contemporaneous evidence, a letter from
appellant’s Staples general manager described appellant as an
“office supply associate” from 2004–2005, whose job duties
16
included “customer service, stocking shelves and cashiering” and
“sometimes training new associates.” Appellant argued he did
not have direct communication with customers and was usually
in the back of the store. He submitted via his second motion, as
new evidence, a copy of a letter from Staples HR services that
specified appellant’s “former job title” as “associate office supply.”
Contrary to appellant’s assertion, however, this does not negate
or contradict the portion of the general manager’s letter that
described appellant’s duties as “customer service” and
“cashiering” in addition to “stocking shelves”—which tends to
indicate appellant was able to communicate and/or understand
English to some extent. The letter from Staples HR merely
confirmed the title of appellant’s position at Staples.
The undisputed facts are that appellant had lived in the
United States for eight years at the time of his conviction, having
arrived when he was 11 years old. Appellant’s school transcripts
show he attended public middle school and high school from 1997
to 2002. Nothing indicates his classes were held in Spanish.
Appellant’s employment history demonstrates he has worked at a
credit consumer agency, a financial company, a title company; no
evidence was provided to indicate these were Spanish-speaking
only jobs.
Appellant refers to his transcripts that show he received a
C in his ESL Intermediate class in 8th grade (1998–1999) and a
C and an F in his ESL Advanced class in 9th grade (2000–2001).
He relies on this as proof that he was not fluent in English at the
time of his plea four years later in October 2005. We find that
unpersuasive. Additionally, his poor grades do not necessarily
demonstrate an inability to understand English and could
17
instead indicate a lack of interest or effort (especially as the
transcripts show an overall pattern of failing grades).
The trial court found the evidence insufficient to warrant
granting the second motion to vacate; it found the additional
information provided was “all information that could have and
should have been presented to the court at the time of the
original hearing.” The trial court below deferred to all factual
findings based on oral testimony given at appellant’s first motion
to vacate. We see no reason to depart from the maxim and defer
to any factual findings made by the trial court in the underlying
proceedings. (See Vivar, supra, 11 Cal.5th at p. 524 [factual
determinations by the trial court are given particular deference;
an appellate court may not simply second-guess factual findings
that are based on the trial court’s own observations].)
We find unavailing appellant’s reliance on the December
16, 2020 notes from Millennium Medical Associates about
appellant’s appointment to seek treatment for adult ADHD. This
is not contemporaneous evidence from the time of appellant’s
2005 plea deal. More importantly, notes from a December 2020
medical appointment is not evidence that appellant had or
suffered from ADHD 15 years prior—in 2005. There is also no
evidence or expert testimony in the record regarding whether
appellant’s claimed ADHD had any effect on his ability to
understand the adverse immigration consequences of accepting
the plea deal, communicated in English in 2005.
Nor are we convinced by appellant’s insistence that he
would have opted for trial had he been properly advised of the
immigration consequences. We might speculate that remaining
in the country was important to appellant as the United States
“is home for [him]” and his mother, fiancée, and son, but whether
18
that consideration rose to preeminence over avoiding a longer
prison sentence at the time of taking the plea in 2005 is
speculative based on the evidence before the trial court.
Undoubtedly, removal from the United States after creating a life
here is a nightmare; however, the test for prejudice considers
what appellant would have done at the time of the plea and not
the consequences appellant currently faces. (See Martinez,
supra, 57 Cal.4th at p. 564.) Appellant offered no evidence that
at the time of the plea avoiding deportation was a priority of his
and that he communicated that priority to his counsel or the
court. He also failed to present evidence that at the time of the
plea, he “had reason to believe an immigration-neutral negotiated
disposition was possible.” (Vivar, supra, 11 Cal.5th at p. 530.)
He did not offer any evidence that alternative, non-deportable
dispositions would have been available and acceptable to the
prosecutor. (Abdelsalam, supra, 73 Cal.App.5th at p. 665; People
v. Olvera (2018) 24 Cal.App.5th 1112, 1118.)
Exercising independent review, we conclude appellant did
not carry his burden for section 1473.7 relief.
19
DISPOSITION
The order denying appellant’s motion to vacate is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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