People v. Cabrera CA2/8 ( 2022 )

Filed 6/30/22 P. v. Cabrera CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B314954
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA115599)
v.
JOSE LUIS CABRERA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. James R. Dabney, Judge. Affirmed.
Law Offices of James Koester and James Koester 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 Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Jose Luis Cabrera appeals from
the order denying his motion, pursuant to Penal Code
section 1473.7, subdivision (a)(1), to vacate a 1995 conviction.
Defendant has not demonstrated error in the denial of his
motion. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We grant defendant’s request for judicial notice of portions
of the file pertaining to his 1995 conviction.
In 1995, defendant was charged with one count of
committing a lewd act upon a child under the age of 14 in
violation of Penal Code section 288, subdivision (a). According to
the probation report, defendant’s nine-year-old stepdaughter told
her mother defendant had touched her inappropriately on
numerous occasions, the first time when she was just seven. Her
mother, who had two younger sons with defendant, called the
police.
At a hearing on July 12, 1995, defendant was represented
by deputy public defender Bruce Schweiger and assisted by a
Spanish language interpreter. The prosecutor advised the court
the parties had reached a negotiated disposition in the case in
which defendant would plead guilty to the lewd conduct charge,
serve one year in county jail, five years of formal probation,
register as a sex offender, receive counseling upon release and
observe a stay away order in favor of the victim during the period
of probation.
Before accepting defendant’s plea, the court advised
defendant of the legal consequences attendant to entering a plea
of guilty, including the following: “If you are not a citizen of the
United States, this guilty plea can result in your deportation,
denial of citizenship, naturalization, amnesty, or reentry into this
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country.” When the court asked defendant if he understood
everything so far, he answered yes. Having heard the court’s
advisement regarding the immigration consequences, defendant
did not ask any questions or seek clarification from the court or
his counsel. The fact defendant was advised by the court of the
immigration consequences of his plea was also confirmed in the
minute order for that date.
The court continued with the plea colloquy, advising
defendant of the specific trial rights he was giving up by pleading
guilty and accepting defendant’s oral waivers of each right on the
record. The court then asked defense counsel, “Mr. Schweiger,
have you discussed with your client his constitutional rights, the
nature of the charge, and the consequences of the plea as well as
any legal or factual defenses, and do you further believe he
understands all of those matters?” Mr. Schweiger said yes.
The court asked defendant whether he understood
everything his attorney and the court had explained to him and
defendant again answered yes. When the court asked defendant
if he had any questions, defendant and his counsel conferred off
the record. After conferring with counsel, defendant asked the
court if it could make a recommendation to the sheriff’s
department that he be placed on a work assignment in county
jail. He had no further requests or questions.
The court found defendant’s waivers to have been made
voluntarily and knowingly, found a factual basis for the plea and
accepted defendant’s plea of guilty. Counsel concurred in the
plea and stipulated to the factual basis for the plea.
In September 2001, defendant, who had completed his
sentence and was out of custody, moved pursuant to Penal Code
section 1203.4 for his conviction to be vacated and the charges
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dismissed. The court granted the motion. The expungement
pursuant to section 1203.4 has no effect on federal immigration
consequences. (See, e.g., People v. Martinez (2013) 57 Cal.4th
555, 560.)
In 2016, Assembly Bill 813 (2015–2016 Reg. Sess.) was
passed, enacting Penal Code section 1473.7 which provides a
procedural mechanism for individuals who are no longer in
custody to move to vacate their prior convictions on certain
enumerated grounds. (Stats. 2016, ch. 739, § 1.) The statute
became effective January 1, 2017.
In September 2020, defendant filed his motion to vacate
pursuant to Penal Code section 1473.7, subdivision (a)(1). In a
supporting declaration, defendant said he was not advised about
the immigration consequences of his plea. He said had he known
he would be subject to mandatory deportation, he would have
asked his attorney to attempt to negotiate an immigration-
neutral disposition. He said he came to the United States from
Guatemala at the age of 24, no longer had any ties with
Guatemala, lived in the United States with his wife (whom he
married in 2013) and five children and was their sole source of
support. Defendant said he was currently facing removal
proceedings as a result of the conviction and did not want to
abandon his family.
The People filed opposition arguing that defendant was
advised of the immigration consequences of his plea and had not
satisfied the burden of proof to prevail on the statutory motion.
The opposition included a copy of the reporter’s transcript for the
1995 plea hearing at which the court advised defendant of the
immigration consequences of his plea.
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On July 19, 2021, the court held an evidentiary hearing on
defendant’s motion. Defendant testified as did his public
defender on the 1995 case, Mr. Schweiger. We provide a more
detailed discussion of their testimony below.
After entertaining argument, the court took the matter
under submission and later issued a written order denying
defendant’s motion. The court found defendant had failed to
meet his burden on the motion and specifically stated it did not
find defendant’s “testimony regarding his lack of understanding
of the court’s advisements to be credible.”
This appeal followed.
DISCUSSION
1. Penal Code Section 1473.7
Defendant moved to vacate his conviction based solely on
subdivision (a)(1) of Penal Code section 1473.7. Subdivision (a)(1)
allows a defendant, who is no longer in custody, to move to vacate
a conviction or sentence where “[t]he 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. A finding of legal
invalidity may, but need not, include a finding of ineffective
assistance of counsel.”
Penal Code section 1473.7 specifies the court “shall grant” a
motion to vacate if the moving party establishes “by a
preponderance of the evidence, the existence of any of the
grounds for relief specified in subdivision (a).” (Id., subd. (e)(1).)
A defendant moving for relief under subdivision (a)(1) “shall also
establish that the conviction or sentence being challenged is
currently causing or has the potential to cause removal or the
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denial of an application for an immigration benefit, lawful status,
or naturalization.” (Id., subd. (e)(1).)
Further, the statute provides “[t]here is a presumption of
legal invalidity for the purposes of paragraph (1) of
subdivision (a) if the moving party pleaded guilty or nolo
contendere pursuant to a statute that provided that, upon
completion of specific requirements, the arrest and conviction
shall be deemed never to have occurred, where the moving party
complied with these requirements, and where the disposition
under the statute has been, or potentially could be, used as a
basis for adverse immigration consequences.” (Pen. Code,
§ 1473.7, subd. (e)(2), italics added.)
2. The Presumption of Invalidity Does Not Apply
Defendant contends subdivision (e)(2) of Penal Code
section 1473.7 should be read broadly to include all plea
convictions eligible for relief pursuant to section 1203.4. Since he
obtained expungement of his conviction pursuant to
section 1203.4 after he completed his probationary term, he says
the presumption of invalidity should therefore apply here.
Defendant admits there is no case authority interpreting the
presumption in this manner.
We are not persuaded by defendant’s novel statutory
interpretation argument. The language of Penal Code
section 1473.7, subdivision (e)(2) is unambiguous. The
presumption of invalidity pertains only to convictions for
violating a statute that expressly contains language providing for
expungement of the conviction after the completion of certain
conditions. Defendant pled guilty to a violation of section 288,
subdivision (a). There is no language in section 288 that states or
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suggests that a defendant may apply to expunge the conviction
upon the successful completion of the sentence imposed.
We adhere to the well-established principle of statutory
interpretation that where statutory language is not ambiguous,
the plain meaning of the language governs. (People v. Walker
(2002) 29 Cal.4th 577, 581.) The presumption is not applicable
here.
2. Defendant Did Not Satisfy His Burden of Proof as
Moving Party
a. Standard of review
Our Supreme Court recently explained that trial court
rulings on Penal Code section 1473.7 motions are subject to
independent review. (People v. Vivar (2021) 11 Cal.5th 510, 527–
528 (Vivar).) While engaging in independent review, an appellate
court nonetheless should give “particular deference to factual
findings based on the trial court’s personal observations of
witnesses” (ibid.) but need not do so for “trial court findings
arising only from a cold record” (id. at p. 534).
b. The evidentiary hearing
Defendant was represented by counsel at the hearing on
his motion and testified under oath with the assistance of a
Spanish language interpreter.
Defendant was born in Guatemala. There was no
testimony about how or when he arrived in the United States,
but the declaration supporting his motion said he was 24 years
old at the time. Defendant said after he arrived in the United
States as an undocumented person, he was assisted by a
nonlawyer in obtaining a work permit and he renewed it
annually.
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Defendant admitted he pled guilty to a violation of Penal
Code section 288 in 1995 and that the lewd conduct involved his
minor stepdaughter. He also acknowledged a copy of his signed,
written statement he gave to police in which he admitted to
inappropriately touching his stepdaughter between three and five
times. She was nine years old at the time. However, defendant
claimed to not recall talking to the police about it and that he did
not recall doing what he had admitted back then. Defendant said
he did recall talking to a psychologist “inside jail” and admitting
again the improper touching of his stepdaughter.
Defendant denied being told about the adverse immigration
consequences of his plea. “I was not told that if I pled guilty I
would have immigration problems. I was not told any of that.”
He said the court may have told him, but he was “very nervous”
and just wanted to get out of the courtroom, get the whole thing
over with, and so he just answered yes to everything. He said he
was never told pleading to the lewd conduct charge would result
in mandatory deportation or make him ineligible to return to the
United States or seek permanent residency at a later date.
Defendant also denied that his attorney, Mr. Schweiger,
told him about any adverse immigration consequences. He said
Mr. Schweiger only explained that he faced a lot of years in
prison if he went to trial, and that the plea offer would allow him
a short time in jail with five years of probation and the
opportunity afterward to “have my record clean.” He said he was
happy about the offer because he “wanted to get out of that
jail. . . . [¶] . . . [¶] . . . I didn’t want to be there. I wanted to be
with my family, my children.”
The prosecutor asked what defendant understood
Mr. Schweiger to mean by saying he could have a “clean record.”
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Defendant said he knew the conviction “was a problem. And
that’s why I asked him afterwards [sic] I would be able to clean
my record. The thing is, I don’t—I don’t know the law.” When he
was asked to clarify, defendant repeated he knew it was “[a]
problem, yes. But not with immigration. I didn’t know that.”
Defendant was asked again how the conviction was a problem.
He answered only that, “[i]n the United States to violate, to do
something which is not correct.” Defendant was not asked to
provide further clarification.
Shortly thereafter, defendant was asked whether, if he had
been told his plea would result in deportation, he would have
talked with his lawyer about it. Defendant said, “[i]f I had been
paying attention, possibly. Yes.” The prosecutor asked him if it
was his testimony that he was not paying attention to what the
court was saying to him during the plea hearing. Defendant
responded by saying he did not understand anything that was
going on. “I was not in my right mind . . . . I was very nervous. I
was crying. [¶] I wanted to get out of there.” Defendant said he
was told he would lose at trial and faced as much as 20 years in
prison if he did not plead guilty, so he pled guilty because he
wanted to get out of there.
Mr. Schweiger, defendant’s public defender in 1995,
testified that in 1995 he had over 10 years of experience, having
joined the public defender’s office in 1984. Mr. Schweiger said the
office had an in-house immigration specialist who trained him
and the other lawyers on immigration issues and kept them
current on immigration law. He did not have a specific
recollection of defendant or his case given the lapse of time but he
said his custom and practice was to discuss citizenship with every
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client and to explain possible immigration consequences to the
charges they faced.
Mr. Schweiger testified that “in a case such as this”
involving a sexual offense, he would “go a step further” and
explain to the client “they have to expect to be deported.” He said
he would discuss the possibility of expunging the record, the
possibility of additional charges being added, the potential
sentences and trial risks, and he reiterated he would tell
noncitizen clients “they had to expect to be deported.”
c. Analysis
In moving to vacate his 1995 plea, defendant was required
to establish, by a preponderance of the evidence, “prejudicial
error damaging [his] ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse
immigration consequences of a conviction or sentence.” (Pen.
Code, § 1473.7, subd. (a)(1), italics added.)
Defendant contends the court’s advisement about
immigration consequences was inadequate because it only told
him he may be deported, not that it was mandatory due to the
nature of the charge to which he was pleading. He argues the
error was compounded by Mr. Schweiger’s failure to properly
advise him about the immigration consequences at all and
particularly to explain that any later expungement would not be
effective to prevent his deportation.
The trial court did not find defendant’s testimony on this
point credible. The trial court was in the best position to assess
defendant’s credibility and its finding is entitled to deference.
(Vivar, supra, 11 Cal.5th at pp. 527–528.)
Moreover, even assuming error in the advisements that
resulted in defendant misunderstanding the full scope of
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immigration consequences, Vivar instructs that it is not enough
for a defendant to show error that resulted in a
misunderstanding of the potential adverse immigration
consequences. A moving party must demonstrate prejudicial
error. (Vivar, supra, 11 Cal.5th at p. 528.)
To establish prejudicial error under Penal Code
section 1473.7, subdivision (a)(1), a defendant must demonstrate
“a reasonable probability that [he or she] would have rejected the
plea if the defendant had correctly understood its actual or
potential immigration consequences. When courts assess
whether a [defendant] has shown that reasonable probability,
they consider the totality of the circumstances. [Citation.]
Factors particularly 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.” (Vivar, supra, 11 Cal.5th at pp. 529–
530.)
Defendant provided evidence that he came to the United
States as an adult, has lived here for many years and has a wife
and children living here. But he did not offer any other evidence
supporting a finding it was reasonably probable he would have
rejected the prosecution’s plea offer had he fully understood the
adverse immigration consequences he was facing.
Defendant signed a statement admitting he inappropriately
touched his stepdaughter on three to five separate occasions. He
acknowledged that statement in his testimony at the hearing.
There is no evidence suggesting the prosecution, in light of that
evidence, was willing to offer defendant a more favorable plea
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that might have been immigration neutral. His counsel offers
speculation that had he been fully apprised of the immigration
consequences, he may have urged Mr. Schweiger to seek an
alternative disposition. Speculation is not sufficient to satisfy his
burden. (See, e.g., People v. Tapia (2018) 26 Cal.App.5th 942, 954
[a defendant’s speculation another disposition could have been
negotiated is not evidence].)
Further, defendant did not provide any testimony or other
evidence he was willing to risk trial despite the evidence against
him. When asked at the hearing whether he would have asked
Mr. Schweiger additional questions if he had understood he faced
deportation by pleading guilty, defendant said he “possibly”
would have “[i]f [he] had been paying attention.” When asked to
clarify this statement, defendant said he did not understand
anything that was going on during the plea colloquy because he
was nervous and just wanted to get out of there.
Defendant’s statements during the plea colloquy and
during his testimony at the motion hearing show that his
primary focus in 1995 was getting out of jail and avoiding
incarceration. The transcript of the plea hearing shows
defendant conferred off the record several times with
Mr. Schweiger, but there is nothing indicating defendant had any
questions about the immigration consequences of his plea.
Defendant only asked the court to recommend a work assignment
for him at the jail. He affirmed several times that he understood
what he was being told and did not have any questions.
Defendant did not offer any evidence contemporaneous with the
taking of his plea that would support his contention many years
later that avoiding adverse immigration consequences was a
paramount consideration in 1995. (Lee v. United States (2017)
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582 U.S.___ [137 S.Ct. 1958, 1967] [in resolving a motion to
withdraw a plea, judges should “look to contemporaneous
evidence to substantiate a defendant’s expressed preferences”].)
Considering the totality of circumstances, defendant failed
to demonstrate that if he had been further advised about the
immigration consequences of his plea, it was reasonably probable
he would have rejected the prosecution’s offer. (Vivar, supra,
11 Cal.5th at pp. 533–534.) The motion to vacate was therefore
properly denied.
DISPOSITION
The order denying defendant’s motion to vacate pursuant
to Penal Code section 1473.7 is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
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