People v. Mendoza CA2/8 ( 2021 )

Filed 9/20/21 P. v. Mendoza 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B305305
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA122267)
v.
SAUL ALEJANDRO MENDOZA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Debra Cole-Hall, Judge. Reversed and
remanded for further proceedings.
Karyn H. Bucur, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Paul M. Roadarmel,
Jr. and Steven D. Matthews, Supervising Deputy Attorneys
General, for Plaintiff and Respondent.
____________________
Saul Alejandro Mendoza moved to vacate a conviction
under Penal Code section 1473.7 because he says he pleaded
guilty without knowing the immigration consequences of the
plea. The trial court denied the motion. We reverse and remand
for further proceedings to determine which crime or crimes were
part of Mendoza’s conviction.
The record of the case contains ambiguity about Mendoza’s
conviction. A felony complaint charged Mendoza with two counts:
“SALE/OFFER TO SELL/TRANSPORTATION OF”
methamphetamine (Health & Saf. Code, § 11379, subd. (a))
(count 1) and “POSSESSION FOR SALE” of methamphetamine
(id., § 11378) (count 2).
On January 10, 2012, Mendoza entered a guilty plea.
According to the plea transcript, Mendoza entered an “open
plea.” A plea to counts 1 and 2 therefore was required.
Accordingly, Mendoza pleaded guilty to both counts. The court
sentenced Mendoza to four years in state prison, suspended
execution of this sentence, and placed Mendoza on probation for
three years. The plea transcript does not say whether the court
imposed judgment, stayed or suspended any sentence, or placed
Mendoza on probation for count 2.
The minute order incorrectly states count 2 was dismissed
due to a plea negotiation.
The trial court heard Mendoza’s motion to vacate his
conviction on January 7, 2020. The judge who heard this motion
was the same judge who took his plea in 2012.
The court found Mendoza “understood that he was, in fact,
facing immigration consequences” and denied the motion.
2
The immigration consequences of Mendoza’s plea may turn
on the precise nature of his conviction.
If Mendoza’s conviction constituted drug trafficking, it was
an aggravated felony. (8 U.S.C. § 1101(a)(43)(B).) An aggravated
felony would carry the consequence of mandatory deportation. (8
U.S.C. § 1228(c) [aggravated felony conviction makes noncitizen
“conclusively presumed to be deportable”]; Moncrieffe v. Holder
(2013) 569 U.S. 184, 187–188 & 204; People v. Ogunmowo (2018)
23 Cal.App.5th 67, 77.) A person convicted of an aggravated
felony cannot obtain relief from removal through asylum,
cancellation of removal, or voluntary departure. (8 U.S.C. §§
1158(b)(2)(A)(ii) & (B)(i), 1229b(a)(3), 1229c(a)(1); Moncrieffe, at
p. 187.)
If there were a clear rule requiring mandatory deportation,
Mendoza may have been entitled to hear it from his lawyer before
deciding to plead. (See Padilla v. Kentucky (2010) 559 U.S. 356,
369 [“when the deportation consequence is truly clear . . . the
duty to give correct advice is equally clear”].)
Count 2, possession for sale of methamphetamine under
Health and Safety Code section 11378, is a drug trafficking
offense and an aggravated felony. (U.S. v. Valdavinos-Torres
(9th Cir. 2012) 704 F.3d 679, 689; In re Hernandez (2019) 33
Cal.App.5th 530, 533 [prosecution and defendant agreed law was
“clear” that § 11378 carried consequence of mandatory
deportation].) It appears deportation is mandatory for this
conviction: a certainty.
The consequence of a conviction on count 1 alone is less
certain. (See Sandoval-Lua v. Gonzales (9th Cir. 2007) 499 F.3d
1121, 1128 [Health & Saf. Code, § 11379, subd. (a) is not
categorically an aggravated felony because some conduct the
3
statute proscribes does not constitute drug trafficking], overruled
on other grounds by Young v. Holder (9th Cir. 2012) 697 F.3d
976; see also U.S. v. Rizo Vera (C.D.Cal., Mar. 24, 2014, No. LA
CR13-00611) 2014 WL 1247425, *4.)
Mendoza’s Health and Safety Code section 11379,
subdivision (a) conviction could have been for transportation for
personal use, for example, which is not drug trafficking.
This appeal requires us to decide whether the trial court
correctly found Mendoza understood the consequences of his plea.
We lack information about the exact nature of Mendoza’s
conviction that is pertinent to this decision. We remand the case
to gain this information.
DISPOSITION
The order is reversed and remanded to determine which
crime or crimes were part of Mendoza’s conviction and for further
proceedings consistent with this opinion.
WILEY, J.
We concur:
STRATTON, Acting P. J. OHTA, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
4