People v. Romero CA2/1 ( 2021 )

Filed 8/25/21 P. v. Romero CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B307941
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA037628)
v.
OSCAR RENE ROMERO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John J. Lonergan, Jr., Judge. Affirmed.
Vejar Law Firm and Erika Vejar for Defendant and
Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Roberta L. Davis and
William H. Shin, Deputy Attorneys General, for Plaintiff and
Respondent.
Oscar Rene Romero appeals from an order denying his
motion to vacate his 1998 conviction for lewd acts upon a child.
Over 20 years after pleading nolo contendere to that offense,
Romero now claims that his conviction was legally invalid
because he failed to understand the potential adverse
immigration consequences of his plea.
Romero contends he received ineffective assistance of
counsel and entered his plea under duress, both constituting
prejudicial errors warranting relief under section 1473.7 of the
Penal Code.1 However, the record before us strongly supports the
inference that Romero’s primary reason for accepting the plea
bargain was the seriousness of the charges he faced if convicted of
all counts, especially in light of the vastly reduced exposure he
received through the plea agreement.
Under our independent judgment standard, Romero has
provided insufficient evidence for us to conclude that he likely
would have rejected the plea offer had he correctly understood
either its actual or potential immigration consequences.
Accordingly, we affirm the trial court’s order denying his section
1473.7 motion.
FACTUAL AND PROCEDURAL BACKGROUND
A. 1998 Felony Conviction
Romero came to the United States from Guatemala in
1982, becoming a lawful permanent resident in 1990.
On June 16, 1997, he was arrested and charged with eight
counts of lewd acts upon two children, Brenda L. and Bernice L.,
1 Undesignated statutory references are to the Penal Code
unless otherwise noted.
2
both of whom were under 14 years of age, in violation of section
288, subdivision (a). He spent the next 10 months in custody
awaiting trial.
On April 24, 1998, Romero pled nolo contendere to one
count of lewd acts upon a child, and the remaining charges were
dismissed. According to the plea transcript, Romero was
specifically informed that his conviction “could result in
deportation, denial of naturalization or denial of re-entry.”
During the plea proceeding, there was considerable back-
and-forth between Romero, his counsel, the prosecutor, and the
trial court over a variety of issues, including the indicated
sentence, the need to register as a sex offender, the potential
unavailability of witnesses, the circumstances for the reduced
custody exposure, custody credits, and whether to release Romero
immediately or keep him in custody until sentencing.
Romero actively participated in the plea hearing. At no
point did he ask any questions about immigration consequences,
although the district attorney plainly stated that he could be
deported as a consequence of his plea. When the prosecutor
asked Romero whether it was in his best interest to plead no
contest, he answered affirmatively, stating “[t]hat’s the only way
that I can keep my life.” His counsel immediately clarified that
Romero was concerned about fear of physical retribution from
other prisoners who knew that he had been charged with
sexually abusing children. Romero also acknowledged that no
one had threatened or coerced him to enter his plea.
At the conclusion of the plea colloquy, the trial court
concluded that Romero had “expressly, knowingly,
understandingly and intelligently waived his constitutional
rights,” and entered his plea “freely and voluntarily . . . with the
3
understanding of the natures and consequences thereof.” He was
released from custody that same day and ordered to appear at
sentencing with a Cruz2 waiver.
On August 14, 1998, Romero was sentenced to a term of
three years in prison, but, pursuant to the indicated sentence, the
execution of his sentence was suspended and he was instead
placed on five years of probation on the condition that he serve
one year in county jail, for which he was awarded full custody
credits.
B. Deportation Proceedings and Motion to Vacate the
1998 Conviction
On June 10, 2014, the United States Department of Justice
Immigration and Naturalization Service instituted removal
proceedings against Romero under section 240 of the
Immigration and Nationality Act. Romero was charged with
removal for violation of section 1227(a)(2)(A)(iii) of title 8 of the
United States Code, which provides that “[a]ny alien who is
convicted of an aggravated felony at any time after admission is
deportable.”
The charging document advised Romero that his 1998
conviction constituted an aggravated felony, and that he was
therefore subject to removal and deportation. (See 8 U.S.C.
§ 1101(a)(43)(A).) There has yet to be a final order of removal
filed against Romero.
On February 26, 2020, Romero filed a motion to vacate his
conviction pursuant to section 1473.7. His declaration urges that
his plea was entered under duress, and that his defense counsel
provided ineffective assistance.
2 See People v. Cruz (1988) 44 Cal.3d 1247.
4
Romero’s declaration goes on to state that, although he
insisted upon his innocence, his counsel advised him to accept a
plea deal. He claims to have been first offered a plea of 12 years
in prison, which he refused, before accepting a plea of no contest
in exchange for five years of probation. Romero does not
remember whether he discussed his immigration status with his
defense attorney, or whether counsel explained the potential
immigration consequences of his plea.
On July 24, 2020, the trial court heard argument on
Romero’s motion, afterwards concluding that Romero’s plea was
taken “pursuant to the law” in 1998, that he likely took the plea
deal to dramatically reduce the scope of his charges and potential
jail time, and that he was properly advised of the potential
immigration consequences of his plea. Accordingly, the trial
court denied the motion.
On September 18, 2020, Romero timely appealed.
DISCUSSION
Section 1473.7 authorizes “[a] person no longer imprisoned
or restrained” to “prosecute a motion to vacate a conviction or
sentence” where the “conviction or sentence is legally invalid due
to a 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, former subd. (a)(1).)
To demonstrate prejudicial error under section 1473.7, a
former defendant must establish, by preponderance of the
evidence, “a reasonable probability that the defendant would
have rejected the plea if the defendant had correctly understood
its actual or potential immigration consequences.” (People v.
Vivar (2021) 11 Cal.5th 510, 529 (Vivar).)
5
On appeal, we independently review section 1473.7 motion
proceedings. (Vivar, supra, 11 Cal.5th at pp. 523-524.) “ ‘[U]nder
independent review, an appellate court exercises its independent
judgment to determine whether the facts satisfy the rule of law.’
[Citation.]” (Id. at p. 527.) Independent review is distinct from
de novo review; when conducting an independent review of a
judgment, “[a]n appellate court may not simply second-guess
factual findings that are based on the trial court’s own
observations.” (Ibid.) “Ultimately it is for the appellate court to
decide, based on its independent judgment, whether the facts
establish prejudice under section 1473.7.” (Id. at p. 528.)
Romero claims that his counsel rendered ineffective
assistance by failing to advise him of the potential immigration
consequences of the 1998 plea, and refusing to explore alternate
deals that could have protected his immigration status.
“[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.)
In Vivar, the Supreme Court held that the defendant was
entitled to relief under section 1473.7 because the objective
evidence demonstrated that the defendant had strong family ties
to the United States, could not speak the dominant language of
his native country, consistently expressed concern about his
immigration status throughout the initial criminal proceeding,
and presented evidence that the prosecution had offered a more
lenient immigration neutral alternate plea deal. (Vivar, supra,
11 Cal.5th at pp. 530-532.)
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There is a dearth of objective evidence corroborating
Romero’s assertions.3 There is no evidence that he raised
concerns about his immigration status with either his counsel or
the court at any point in the proceedings during 1997 or 1998.
Nor is there evidence that he was insufficiently advised of
potential immigration consequences. To the contrary, the plea
transcript in 1998 shows exactly the opposite.
There is also no evidence that he was or would have been
offered a more lenient plea deal or an immigration neutral deal.
Indeed, the offer Romero eventually accepted by way of an
indicated sentence was far more lenient than the one he had
previously been offered or, indeed, than the maximum allowable
prison sentence recommended in Romero’s probation report.
Romero only speculates about how his plea counsel
approached the bargaining process. As the trial court concluded,
Romero had good reason to accept the plea bargain “based on the
seriousness of the charges and what he was facing potentially if
he was to be convicted on all six counts,” regardless of its impact
on his immigration status.
Standing alone, Romero’s assertions that he only pled nolo
contendere because of his plea counsel’s alleged failure to advise
him of his adverse immigration consequences are entitled to little
weight. (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 78
[“ ‘Courts should not upset a plea solely because of post hoc
3 At the hearing, Romero’s current public defender stated
that Hideo Nakano, Romero’s former public defender, had been
fired and had refused to provide a declaration in support of her
motion. Nakano purportedly said to tell the trial court that he
had been an “incompetent boob” when defending Romero. Such
rank hearsay is entitled to no weight.
7
assertions from a defendant about how he would have pleaded
but for his attorney’s deficiencies’ ”]; see also People v. Martinez
(2013) 57 Cal.4th 555, 564 [“the test for prejudice considers what
the defendant would have done, not what the effect of that
decision would have been”].)
Romero also contends that he entered the plea under
duress, and only accepted the plea deal to escape threats of
physical violence from his fellow inmates while in custody. He
suggests that the duress he suffered in custody overwhelmed his
ability to think rationally about the consequences of his nolo
contendere plea, including any potential immigration
consequences. He appears to argue that this error could have
been averted had the judge ordered that “proper precautions be
taken so as to remove the duress element of Mr. Romero’s plea
calculus.”
This contention is belied by Romero’s own declaration,
wherein he states that his defense attorney arranged for him to
be moved to an isolated cell in order to protect him from further
threats of violence before his plea bargain was reached.
(Compare People v. Sandoval (2006) 140 Cal.App.4th 111, 126
[allowing withdrawal of a guilty plea under § 1018 where a fellow
gang member had threatened to kill the defendant if he did not
enter the plea]; People v. Weaver (2004) 118 Cal.App.4th 131,
149-150 [allowing withdrawal of a guilty plea under § 1018 where
the trial judge put undue pressure on the defendant to accept a
guilty plea].)
Additionally, Romero has not shown how any purported
duress specifically impacted his ability to evaluate or defend
against the plea’s potential impact on his immigration status.
(People v. Vivar (2019) 43 Cal.App.5th 216, 233 [for the purposes
8
of providing relief under § 1473.7, legal invalidity requires a
prejudicial error that damages the movant’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” ’ ”], revd. with directions (2021)
11 Cal.5th 510.)
As we have said, more likely than not, Romero took the
district attorney’s reduced plea offer in 1998 to dramatically
reduce the scope of his charges and immediate prison exposure.
As also noted above, there was no evidence that he was offered an
immigration neutral alternative plea. Accordingly, we cannot
conclude that he suffered a prejudicial error under section
1473.7.4
4 Romero provides no authority for the proposition that
duress in the form of threatened physical harm by inmates
should play a role in the immigration consequences calculus.
Other legal mechanisms, such as a petition for writ of error
coram nobis, are traditionally used to invalidate a plea entered
under duress of mob violence. (People v. Kim (2009) 45 Cal.4th
1078, 1102; People v. Perez (1908) 9 Cal.App. 265, 266.) Because
we decide this case on a lack of evidence, we decline to address
whether duress can ever render a plea legally invalid under
section 1473.7.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED
CRANDALL, J.*
We concur:
CHANEY, J.
BENDIX, Acting P.J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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