People v. Camacho ( 2019 )

Filed 2/27/19; Certified for Publication 3/6/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B288159
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA111918)
v.
JOHN GAROFY CAMACHO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Olivia Rosales, Judge. Reversed and
remanded with instructions.
Danish A. Shahbaz for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Mathews and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
Appellant John Garofy Camacho (defendant) appeals from
the denial of his motion pursuant to Penal Code section 1473.7, 1
to vacate his conviction of possession of marijuana for sale, on the
ground that prejudicial errors were made which damaged
defendant’s ability to understand or defend against the adverse
immigration consequences of his nolo contendere plea. During
the pendency of this appeal, the Legislature amended section
1473.7. The parties filed supplemental briefs to address the
clarified statute. We conclude that the evidence supported
defendant’s motion. We thus reverse with directions to the trial
court to grant the motion to vacate defendant’s conviction.
BACKGROUND
In 2009 defendant was charged with violating Health and
Safety Code section 11359, possession of marijuana for purposes
of sale. He pled no contest to the charge under the terms of a
plea agreement which provided for three years felony probation
and community service. At the request of defense counsel, the
court stated that if defendant returned in 18 months with a clear
record, the court would “definitely consider” granting a motion
pursuant to section 1203.4, to expunge the conviction.
In October 2016, a section 1203.4 motion was filed on
defendant’s behalf. The motion was granted, the plea and
conviction were vacated and replaced with a plea of not guilty.
The information was then dismissed. On February 14, 2017,
1 At all times relevant, section 1473.7, subdivision (a)(1)
allows a person no longer in custody to move to vacate a
conviction or sentence which is 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.”
All further statutory references are to the Penal Code,
unless otherwise indicated.
2
defendant’s petition under Proposition 64 was granted, and the
charge was reduced to a misdemeanor (Health & Saf. Code,
§ 11361.8, subd. (f)).
In September 2017, defendant retained new counsel who
filed the motion to vacate defendant’s conviction of the original
charges. After a hearing, the trial court denied the motion on
January 19, 2018. Defendant filed a timely notice of appeal.
Defendant’s declaration in support of the motion
Defendant declared he was born in Mexico in 1985 and
brought to the United States by his grandmother when he was
two years old. He attended Florence Avenue Elementary School,
Edison Middle School, and Huntington Park High School. He
married a United States citizen and has two United States
citizen children, ages 5 and 11. He was employed as a tow truck
driver. Defendant was arrested in August 2009 for possession of
marijuana with intent to sell and released on bail. Defendant
retained an attorney, who reviewed the police report and met
with defendant. Defendant was told that his attorney would try
to get a disposition with no jail time, but never discussed
immigration issues or any settlement offers, nor was he
instructed to consult with an immigration attorney.
When defendant entered his plea he heard the judge say
the conviction could lead to deportation. However, his attorney
told him everything would be fine. Defendant’s attorney never
told defendant of the consequences of a plea to Health and Safety
Code section 11359, but told him on the day he entered the plea
that defendant would not serve jail time if he pled that day.
Counsel did not tell defendant that he could take the case to trial
or discuss the possible outcome. Defendant declared: “I would
have never taken the plea that I was given if I would have known
that it would have not permitted me to obtain legal status in the
United States. I have two United States citizen children and my
3
wife is a United States citizen. I cannot leave them here in the
United States without being their [sic] to support them.”
Defendant’s testimony
Defendant testified at the hearing that he was brought to
the United States at two years old, and has never left this
country since then. As of the day of the hearing, he had been
married to his United States citizen wife for 12 years, with two
children, ages 11 and 5. In 2009, when defendant was arrested
for possession of marijuana, he retained an attorney with whom
he met five or six times in all, sometimes at counsel’s office,
sometimes at the courthouse. Defendant could not remember
whether they discussed his immigration status during their first
meeting, but he told counsel at one meeting that he was not born
in the United States and was undocumented. When they did
discuss his immigration issue it was mostly about avoiding jail
time. Defendant thought that if he received jail time he would be
deported.2
Defendant also testified that his attorney did not tell him
that this charge would subject him to mandatory deportation or
administrative removal without a court deportation hearing, or
that the conviction would prevent him from ever becoming a legal
permanent resident. Defendant was also never directed to
consult with an immigration attorney to discuss his options.
Defendant first learned of the severe immigration consequences
when he retained his present counsel for the purpose of adjusting
his immigration status based upon his marriage.
Defendant recalls that at the time of his plea he would have
been fired from his job if he had gone to jail for 120 days, as
2 At the plea hearing, the prosecutor stated, “If you are not a
citizen of the United States your conviction in this case will result
in your being deported, excluded from the U.S., and denied
naturalization.”
4
originally offered, but the no-custody disposition permitted him to
keep his job. After probation was successfully completed
defendant’s attorney returned to court to have defendant’s
conviction expunged, and then in 2017, defendant successfully
brought a Proposition 64 petition to have the conviction deemed a
misdemeanor.
Attorney’s testimony
Defendant’s attorney testified that after being retained by
defendant they did not discuss the charges until he reviewed the
police report. He did not remember discussing immigration
consequences with defendant or what was said, but they did
discuss the subject, as counsel discusses immigration
consequences with all his clients. He asks clients whether there
are immigration issues and he notes that in their files, though he
made no such notes in this case. Counsel then testified that he
tells “every client [who is] here with a visa or a green card or
illegal, you always have the risk of getting deported,” but he does
not keep notes about what he does or does not advise clients. A
no-jail plea agreement was reached because defendant had a job
and the facts of the case deserved a no-jail disposition.
Defendant’s attorney could not recall whether he attempted
to learn possible immigration consequences of defendant’s plea.
He told all clients that there was always a risk of getting
deported. However, he did not remember doing so in this case.
He could not remember what the consequences of a conviction of
Health and Safety Code section 11359 were at the time of the
plea, and thought that things had changed since then. He did tell
defendant that the charge could subject him to deportation. His
practice at that time was to tell clients that any felony or serious
misdemeanor could get them deported, and that they should get
the advice of an immigration attorney. He thought that it would
help with defendant’s immigration consequences if the charge
5
could be reduced to a misdemeanor, but the prosecutor would not
agree to a misdemeanor because of the quantity of marijuana.
After review of the plea transcript where counsel stated to
the court: “The other thing I did tell him, 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.” Counsel recalled making the
statement to the sentencing court, and explained that he
intended to seek expungement of the conviction under section
1203.4, and thought that an expungement under that statute
would “certainly help” with defendant’s immigration
consequences, “especially if it was knocked down to a
misdemeanor.” He also remembered telling defendant that
“we’re going to get it down to a misdemeanor and expunged early
and maybe that will help him.” He brought up the possibility of
expungement in court in order to have it on the record that there
were immigration reasons for expungement.
Counsel testified that although he thought it would help
defendant’s status, he had not investigated the effect of
expungement in immigration cases, adding that he was unable to
research immigration law because he was not an immigration
lawyer. He usually advises all his clients to consult an
immigration attorney before entering a plea, but he did not
remember if told this to defendant. Counsel later consulted an
immigration attorney regarding Proposition 64, and based on
that, he told defendant that a Proposition 64 petition would help
him.
The ruling
The trial court found the motion premature because no
deportation proceedings had been initiated against defendant,
6
and denied the motion for that reason. 3 The trial court also
denied the motion on the basis of its finding that counsel’s
representation did not fall below the standards of what was
reasonably expected under the customs and practices at the time.
The court noted that Padilla v. Kentucky4 was decided the same
year as defendant’s plea. The court noted defendant’s concern
was not getting jail time, and found no facts indicating prejudice.
The court concluded that there was no prejudice to defendant
even if trial counsel had not provided reasonable representation
with regard to immigration consequences, adding that it found no
evidence to support defendant’s current counsel’s claim that there
could have been an “immigration-safe” plea.
3 Respondent concedes that the trial court erred in its
interpretation of section 1473.7, subdivision (b) as requiring the
moving party to wait until the commencement of deportation
proceedings or other adverse immigration consequences before
filing the motion. The moving party may file a motion when
facing potential as well as actual immigration consequences, so
long as he does so with reasonable diligence after discovery of the
basis for relief. (§ 1473.7, subd. (b)(1); see People v. Morales
(2018) 25 Cal.App.5th 502, 509-511.)
4 See Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla), and
discussion, post. In Padilla, the United States Supreme Court
acknowledged that “[f]or at least the past 15 years, professional
norms have generally imposed an obligation on counsel to provide
advice on the deportation consequences of a client’s plea
[citation],” and held that the Sixth Amendment guarantee of
effective assistance of counsel required criminal defense
attorneys to inform their non-citizen clients of the risks of
deportation arising from guilty pleas. (Id. at pp. 369-372.)
However, in 2013, the court clarified that its ruling in Padilla did
not apply retroactively to defendants whose convictions became
final before it decided Padilla. (Chaidez v. United States (2013)
568 U.S. 342, 344 (Chaidez).)
7
DISCUSSION
I. The immigration consequences of defendant’s plea
Because possession of marijuana for sale is an “aggravated
felony” under federal law and was an aggravated felony at the
time of defendant’s plea (8 U.S.C. § 1101(a)(43)(B)), deportation
and exclusion from readmission was and remains mandatory. (8
U.S.C. § 1227(a)(2); see Moncrieffe v. Holder (2013) 569 U.S. 184,
188.) Expungement under section 1203.4 has no effect on the
federal immigration consequences of a conviction of such a felony.
(People v. Martinez (2013) 57 Cal. 4th 555, 560 (Martinez), citing
Ramirez-Castro v. I.N.S. (9th Cir. 2002) 287 F.3d 1172, 1174-
1175.)
It is also probable that the reduction to a misdemeanor
under Proposition 64 would also have no effect. (Cf. United
States v. Diaz (9th Cir. 2016) 838 F.3d 968, 973-975 [federal
recidivist enhancement unaffected by reduction under
Proposition 47].)5 In immigration proceedings when a deportable
conviction has been vacated by the state court, it nevertheless
remains a deportable conviction if it was vacated solely for
rehabilitative reasons or to allow the convicted person to remain
in this country. (Pickering v. Gonzales (6th Cir. 2006) 465 F.3d
263, 270.) On the other hand, while “[a] conviction vacated for
rehabilitative or immigration reasons remains valid for
immigration purposes, . . . one vacated because of procedural or
5 In People v. Bautista (2004) 115 Cal. App. 4th 229, 240
(Bautista), the appellate court noted that according to an
immigration expert who testified in that case, “[o]ne technique
the attorney could have used to defend against adverse
immigration consequences was to plead to a different but related
offense. Another was to ‘plead up’ to a nonaggravated felony even
if the penalty was stiffer.”
8
substantive infirmities does not. [Citations.]” (Id. at p. 266, fn.
omitted.)
II. Pre-2019 interpretations of section 1473.7
As first enacted, effective January 1, 2017, section 1473.7,
subdivision (a)(1), provided in relevant part that “[a] person no
longer imprisoned . . . may prosecute a motion to vacate a
conviction . . . [¶] . . . [that] 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.” Section 1473.7, subdivision (e)(1), which
remains unchanged, provides: “The court shall grant the motion
to vacate the conviction or sentence if the moving party
establishes, by a preponderance of the evidence, the existence of
any of the grounds for relief specified in subdivision (a).”
In the two years that followed the enactment of section
1473.7, California courts uniformly assumed, as the trial court
did here, that moving parties who claim prejudicial error was
caused by having received erroneous or inadequate information
from counsel, must demonstrate that counsel’s performance fell
below an objective standard of reasonableness under prevailing
norms, as well as a reasonable probability of a different outcome
if counsel had rendered effective assistance. Those courts either
expressly or impliedly followed the guidelines enunciated in
Strickland v. Washington (1984) 466 U.S. 668, 688, 694
(Strickland). (See, e.g., People v. Espinoza (2018) 27 Cal.App.5th
908, 914, 917; People v. Tapia (2018) 26 Cal.App.5th 942, 949,
951 [citing Perez]; People v. Olvera (2018) 24 Cal.App.5th 1112,
1114, 1116 (Olvera); People v. Ogunmowo (2018) 23 Cal.App.5th
67, 75-76 (Ogunmowo); People v. Perez (2018) 19 Cal.App.5th 818,
828, 831 & fn. 8.)
9
In Olvera, the appellate court noted that the parties
disagreed whether professional norms imposed upon criminal
defense attorneys an affirmative duty to investigate and advise
on immigration consequences prior to the 2010 publication of
Padilla, supra, 559 U.S. 356. The defendant in Olvera pointed to
“evidence of such norms in American Bar Association . . .
standards and practice guides dating from the 1990’s [citation],
and . . . to pre-2005 California decisions recognizing a duty to
advise . . . ,” such as People v. Soriano (1987) 194 Cal. App. 3d
1470, 1481-1482 (Soriano), People v. Barocio (1989) 216
Cal. App. 3d 99, 103-104 (Barocio), and Bautista, supra, 115
Cal.App.4th at pages 238, 241. (Olvera, supra, 24 Cal.App.5th at
p. 1117.) “The People counter[ed] that the United States
Supreme Court did not recognize a Sixth Amendment duty to
advise on collateral immigration consequences until [the Padilla
decision] and that the court has since held that this ‘new rule’ is
not retroactive. (Chaidez, [supra, 568 U.S. at pp.] 357-358).”6
(Olvera, at p. 1117.) The Olvera court did not resolve the issue,
but “note[d] that the California Supreme Court disavowed the
collateral-direct consequences distinction in 2001 (nine years
before Padilla), and expressly reserved the question whether
there was at that time an affirmative duty to advise (In re
Resendiz [(2001) 25 Cal. 4th 230] at pp. 240, 248, 250).” (Olvera,
supra, at p. 1117.)
III. The Legislature’s clarification of section 1473.7
In 2018, the Legislature passed Assembly Bill No. 2867,
amending section 1473.7 effective January 1, 2019. (Stats. 2018,
6 The “new rule” was the question left open by the Supreme
Court before Padilla, whether the Sixth Amendment required
attorneys to inform their clients of the collateral consequences of
a conviction, including immigration consequences. (Chaidez,
supra, 568 U.S. at pp. 347, 350.)
10
ch. 825, § 2.) The amended subdivision (a)(1) provides in relevant
part: “A person who is no longer in criminal custody may file a
motion to vacate a conviction or sentence . . . [¶] . . . [that] 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. A finding of
legal invalidity may, but need not, include a finding of ineffective
assistance of counsel.” (Italics added.)
The construction and interpretation of a statute is a
question of law that we consider de novo on appeal. (Burden v.
Snowden (1992) 2 Cal. 4th 556, 562.) “As in any case involving
statutory interpretation, our fundamental task here is to
determine the Legislature’s intent so as to effectuate the law’s
purpose. [Citation.] We begin by examining the statute’s words,
giving them a plain and commonsense meaning. [Citation.] We
do not, however, consider the statutory language ‘in isolation.’
[Citation.] Rather, we look to ‘the entire substance of the statute
. . . in order to determine the scope and purpose of the provision .
. . . [Citation.]’ [Citation.] That is, we construe the words in
question ‘“in context, keeping in mind the nature and obvious
purpose of the statute . . . .” [Citation.]’ [Citation.] We must
harmonize ‘the various parts of a statutory enactment . . . by
considering the particular clause or section in the context of the
statutory framework as a whole.’ [Citations.]” (People v. Murphy
(2001) 25 Cal. 4th 136, 142.)
In enacting the measure, the Legislature declared among
other things that its intent was “to provide clarification to the
courts regarding Section 1473.7 . . . to ensure uniformity
throughout the state and efficiency in the statute’s
implementation.” (Stats. 2018, ch. 825, § 1(b).) To do so, the
Legislature’s declarations included the following: “(c) This
11
measure shall be interpreted in the interests of justice and
consistent with the findings and declarations made in Section
1016.2 of the Penal Code”; and, “(d) The State of California has
an interest in ensuring that a person prosecuted in state court
does not suffer penalties or adverse consequences as a result of a
legally invalid conviction.” (Stats. 2018, ch. 825, § 1(c) & (d).)
As the parties did not address the amended statute in their
original briefs, we invited them to submit additional briefing on
the effect, if any, of the amended statute and section 1016.2 on
the issues in this appeal. Defendant contends that the clarified
statute is applicable here and supports the relief requested. He
points out that when the Legislature clarifies a statute, it is
applied to existing law, although it is not technically
retrospective as it is not considered a change in the law. (See
City of Redlands v. Sorensen (1985) 176 Cal. App. 3d 202, 211.)
We agree. “‘“An amendment which in effect construes and
clarifies a prior statute must be accepted as the legislative
declaration of the meaning of the original act, where the
amendment was adopted soon after the controversy arose
concerning the proper interpretation of the statute. . . .”
[Citation.]’ [Citation.]” (Western Security Bank v. Superior Court
(1997) 15 Cal. 4th 232, 243-244, fn. omitted.)
Respondent, on the other hand, contends that defendant’s
claim for relief should not be treated differently under the
amended statute. Respondent contends that the only ground
asserted for the motion was ineffective assistance of counsel and
that defendant should be held to his original theory. Respondent
also argues that defendant was foreclosed from claiming
ineffective assistance of counsel as a ground for the motion.
Respondent reasons that because section 1016.2 was intended to
codify the Padilla requirements for effective assistance of counsel
under the Sixth Amendment, it necessarily follows that such
12
codification implicitly includes the restriction on retroactivity
enunciated in Chaidez, supra, 568 U.S. at page 344.7
Defendant’s position is that the restriction on Padilla’s
retroactivity did not apply to California. The Supreme Court’s
nonretroactivity decision was based upon its assessment that the
Padilla decision “altered the law of most jurisdictions.” (Chaidez,
supra, 568 U.S. at p. 352, italics added.) As defendant reads
Chaidez, retroactivity was thus rejected only for jurisdictions that
did not already require defense counsel to investigate and advise
about immigration consequences. Defendant argues that Padilla
did not alter the law in California, as recognized by the
Legislature in 2015, when section 1016.2 codified the older
California decisions such as Soriano, published long before
defendant’s guilty plea, to support its statement that “California
courts . . . have held that defense counsel must investigate and
advise regarding the immigration consequences of the available
dispositions, and should, when consistent with the goals of and
informed consent of the defendant, and as consistent with
professional standards, defend against adverse immigration
consequences.” (§ 1016.2, subd. (a), citing Soriano, supra, 194
Cal. App. 3d 1470, Barocio, supra, 216 Cal. App. 3d 99, and
Bautista, supra,115 Cal. App. 4th 229.)
Since we reject respondent’s premise that defendant’s sole
theory was ineffective assistance of counsel, we need not decide
whether California was an exception to the Supreme Court’s
finding that Padilla was not retroactive. Although defendant
argued ineffective assistance of counsel, the motion was brought
expressly on the grounds of section 1473.7, subdivision (a)(1), as
7 As authority for this argument, respondent cites People v.
Gonzalez (2018) 27 Cal.App.5th 738, 751. However, on January
23, 2019, the California Supreme Court decertified that decision
for publication.
13
stated in the notice of motion: “This motion is being made
pursuant to [section 1473.7] based on prejudicial error on the
part of [defendant’s counsel] damaging his ability to understand
or defend against the adverse immigration consequences of his
nolo contendere plea.”
The Legislature has clarified that the moving party need
not establish ineffective assistance of counsel. (§ 1473.7 subd.
(a)(1).) It follows therefore, that even if the motion is based upon
errors by counsel, the moving party need not also establish a
Sixth Amendment violation as by demonstrating that “counsel’s
representation ‘fell below an objective standard of
reasonableness’. . .‘under prevailing professional norms,’” as
stated in Padilla, supra, 559 U.S. at pages 366, 368-369, quoting
Strickland, supra, 466 U.S. at pages 688, 694. We thus reject
respondent’s reasoning that review must be limited to legal
principles relating to the right to effective assistance of counsel.
Defendant was required only to show that one or more of the
established errors were prejudicial and damaged his “ability to
meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of [his]
plea . . . .” (§ 1473.7, subd. (a)(1).) If it were otherwise, we would
have to engage in an analysis that the Legislature never meant
to require, which in turn, would render the statute meaningless.
The facts established by defendant’s declaration and
testimony showed not only counsel error, but also included
defendant’s own error in believing that a negotiated plea calling
for no time in custody would avoid making him deportable, and in
not knowing that his plea would subject him to mandatory
deportation and permanent exclusion from the United States.
The trial court made no express or implied credibility
determination for or against defendant, as the ruling was based
upon a finding that defendant had not demonstrated ineffective
14
assistance of counsel or prejudice under Padilla, and therefore
impliedly under the guidelines of Strickland. However,
defendant’s claims of error were supported by his former
attorney’s undisputed testimony that he told defendant only that
the charge could subject him to deportation and that “we’re going
to get it down to a misdemeanor and expunged early and maybe
that will help”; that he misunderstood the potential immigration
consequences and the effect of expungement or reductions of
felonies in immigration cases; and that he did not explore
possible alternatives to pleading to an aggravated felony.
Finally, defendant provided evidence of his misunderstanding at
the time of his plea, due to his and counsel’s errors. It was only
after his conviction was expunged and reduced to a misdemeanor
that defendant consulted an immigration attorney to apply for a
permanent resident visa on the basis of his marriage to a United
States citizen. He then learned of the true immigration
consequences of his plea.
We conclude that defendant satisfied the required showing
that errors damaged his “ability to meaningfully understand,
defend against, or knowingly accept the actual or potential
adverse immigration consequences of [his] plea of . . . nolo
contendere,” as required by section 1473.7, subdivision (a). We
turn to the question whether they were shown to be prejudicial.
IV. Prejudice
Because the errors need not amount to a claim of ineffective
assistance of counsel, it follows that courts are not limited to the
Strickland test of prejudice, whether there was reasonable
probability of a different outcome in the original proceedings
absent the error. (See Strickland, supra, 466 U.S. at p. 694.) As
the Legislature found and declared in section 1016.2, subdivision
(f):
15
“Once in removal proceedings, a noncitizen may
be transferred to any of over 200 immigration
detention facilities across the country. Many
criminal offenses trigger mandatory detention, so
that the person may not request bond. In
immigration proceedings, there is no court-appointed
right to counsel and as a result, the majority of
detained immigrants go unrepresented. Immigration
judges often lack the power to consider whether the
person should remain in the United States in light of
equitable factors such as serious hardship to United
States citizen family members, length of time living
in the United States, or rehabilitation.”
As our Supreme Court has found:
“‘[C]riminal convictions may have ‘dire
consequences’ under federal immigration law
[citation] and that such consequences are “material
matters” [citation] for noncitizen defendants faced
with pleading decisions.’ [Citation.] ‘[A] deported
alien who cannot return “loses his job, his friends, his
home, and maybe even his children, who must choose
between their [parent] and their native country . . . .”’
[Citation.] Indeed, a defendant ‘may view
immigration consequences as the only ones that could
affect his calculations regarding the advisability of
pleading guilty to criminal charges’ [citation], such as
when the defendant has family residing legally in the
United States. ‘Thus, even before the Legislature
expressly recognized [in section 1016.5, subdivision
(d)] the unfairness inherent in holding noncitizens to
pleas they entered without knowing the consequent
immigration risks [citation], we held that justice may
require permitting one who pleads guilty “without
knowledge of or reason to suspect [immigration]
consequences” to withdraw the plea.’ [Citation.]”
16
(Martinez, supra, 57 Cal.4th at p. 563, quoting In re
Resendiz, supra, 25 Cal.4th at p. 250, and People v.
Superior Court (Zamudio) (2000) 23 Cal. 4th 183, 209.)
The Martinez court concluded that because “the defendant’s
decision to accept or reject a plea bargain can be profoundly
influenced by the knowledge, or lack of knowledge, that a
conviction in accordance with the plea will have immigration
consequences . . . , and because the test for prejudice considers
what the defendant would have done, not what the effect of that
decision would have been, a court ruling on a section 1016.5
motion may not deny relief simply by finding it not reasonably
probable the defendant by rejecting the plea would have obtained
a more favorable outcome.” (Martinez, supra, 57 Cal.4th at p.
564.) Instead, the defendant may show prejudice by “convinc[ing]
the court [that he] would have chosen to lose the benefits of the
plea bargain despite the possibility or probability deportation
would nonetheless follow.” (Id. at p. 565; see also Lee v. United
States (2017) __ U.S. __ [137 S. Ct. 1958] (Lee); Ogunmowo, supra,
23 Cal.App.5th at pp. 78-80.)
The principles found in Martinez and Lee apply equally to a
prejudice analysis under section 1473.7. (See Ogunmowo, supra,
23 Cal.App.5th at p. 78.) As the United States Supreme Court
pointed out, “[C]ommon sense (not to mention our precedent)
recognizes that there is more to consider than simply the
likelihood of success at trial. The decision whether to plead
guilty also involves assessing the respective consequences of a
conviction after trial and by plea. [Citation.]” (Lee, supra, 137
S.Ct. at p. 1966.) In Lee, the court found that the defendant had
demonstrated a reasonable probability that he “would have
rejected any plea leading to deportation -- even if it shaved off
prison time -- in favor of throwing a ‘Hail Mary’ at trial.” “Lee
had lived in the United States for nearly three decades [since
17
leaving as a child], had established two businesses in Tennessee,
and was the only family member in the United States who could
care for his elderly parents -- both naturalized American
citizens.” (Id. at pp. 1967-1968.)
Similarly, in Ogunmowo, the defendant stated in a
declaration supporting the defendant’s motion to vacate the
conviction under section 1473.7: “‘I would have rejected the plea
agreement had I known I could be subject to immigration
sanctions. I moved my life 7,700 miles across the globe from
Lagos, Nigeria to Los Angeles in 1980. I became a lawful
permanent resident in 1988. I was not about to accept the
possibility of deportation or inability to maintain my immigration
status to be in the United States. I had already established my
life in the United States.’” (Ogunmowo, supra, 23 Cal.App.5th at
p. 73.) The evidence which was not disputed by the prosecutor
showed that the defendant came to the United States when he
was 17 years old, and during the 13 years after his guilty plea to
a drug offense, he had four American citizen children with his
American citizen partner, not knowing that his conviction made
him automatically deportable. (Id. at pp. 69-71, 73.) The
appellate court held that the defendant had met his burden of
establishing prejudicial error by a preponderance of the evidence,
and directed the trial court to permit him to withdraw his plea.
(Id. at p. 81.)
Here, the facts are equally compelling although defendant
did not have a permanent resident visa. He was brought to the
United States over 30 years ago at the age of two, has never left
this country, and attended elementary, middle, and high school
in Los Angeles county. Defendant is, and at the time of his plea
was, married to a United States citizen with an American citizen
son, and now also an American citizen daughter. At the time of
his plea, defendant was employed building pallets and now works
18
as a tow truck driver. Defendant has no other adult criminal
convictions.8 The prosecution did not dispute any of these facts.
We conclude that as defendant showed by a preponderance
of evidence that he would never have entered the plea if he had
known that it would render him deportable, the errors which
damaged his ability to meaningfully understand, defend against,
or knowingly accept the adverse immigration consequences of a
plea were prejudicial. The court was thus required to grant the
motion to vacate the conviction as invalid. (§ 1473.7, subd. (e).)
The appropriate remedy is to direct the trial court to grant the
motion. (See Ogunmowo, supra, 23 Cal.App.5th at p. 81; People
v. Espinoza, supra, 27 Cal.App.5th at pp. 917-918.)
DISPOSITION
The order denying the motion to vacate defendant’s
conviction is reversed and the matter is remanded to the superior
court with instructions to grant the motion and to vacate the
conviction.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT
8 Although in the trial court defendant was advised that his
plea “will result” (italics added) in adverse immigration
consequences, defendant presented sufficient evidence of his lack
of understanding such that the court’s advisement cannot be
taken as irrebuttable proof that defendant likely would have
entered his plea notwithstanding those consequences.
19
Filed 3/6/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B288159
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA111918)
v.
ORDER FOR PUBLICATION
JOHN GAROFY CAMACHO,
Defendant and Appellant.
THE COURT:*
The opinion in the above entitled matter filed on February 27, 2019,
was not certified for publication.
For good cause it now appears that the opinion should be published
in the Official Reports and it is so ordered.
____________________________________________________________
*ASHMANN-GERST, Acting P. J., CHAVEZ, J., HOFFSTADT, J.
1