People v. Ronduen CA2/7 ( 2021 )

Filed 11/16/21 P. v. Ronduen CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B310292
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA094330)
v.
LIGAYA RONDUEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Suzette Clover, Judge. Affirmed.
Sabrina R. Damast, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews, Supervising Deputy
Attorney General, Kathy S. Pomerantz, Deputy Attorney
General, for Plaintiff and Respondent.
_________________
Ligaya Ronduen appeals from the trial court’s order
denying her motion under Penal Code 1 section 1473.7 to vacate
her 2015 conviction of one count of lewd act upon a child.
Ronduen, who faces mandatory deportation to the Philippines,
contends she did not meaningfully understand the immigration
consequences of her no contest plea because her attorney did not
fully advise her of the immigration consequences, including
mandatory detention and permanent exclusion from the United
States, and her attorney’s advisement was ambiguous. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Ronduen’s Plea and Conviction of Lewd Act upon a Minor
Ronduen was born in the Philippines, emigrated to the
United States in 1996, and was granted lawful permanent
resident status in 1998. Ronduen has two children who are
United States citizens.
On August 21, 2014 Ronduen was charged with three
counts of committing a lewd act upon a child under the age of
14 years (§ 288, subd. (a)) and one count of oral copulation with a
child under the age of 14 years (§ 288a, subd. (c)(1)). According to
the probation officer’s report, Ronduen became involved in an
online relationship with a purported couple, Brad and Amy, and
Ronduen performed sex acts with her then-eight-year-old son on
a webcam for the couple. Ronduen later learned the purported
couple was actually Hank Andrusick, who she claimed
manipulated and tried to blackmail her. In 2011 Ronduen told
1 All undesignated statutory references are to the Penal
Code.
2
FBI investigators that she and her son had appeared naked on a
webcam on seven occasions, during which they engaged in
mutual genital touching. In Internet communications with
Andrusick recovered by the FBI, Ronduen told Andrusick her son
had performed oral sex on her. In June 2011 the Los Angeles
County Department of Children and Family Services filed a
dependency petition on behalf of Ronduen’s two children, and in
its investigative report the Department alleged Ronduen exposed
her children to her naked body daily, showered with them, and
sexually abused her eight-year-old son in front of her 13-year-old
son.
On January 21, 2015, pursuant to a negotiated plea
agreement, Ronduen pleaded no contest to one count of
committing a lewd act upon a child (§ 288, subd. (a)) and was
sentenced to the middle term of six years in state prison, among
other terms. At the outset of the hearing, the trial court2
inquired, “Do you need any more time to speak with your
attorney at this time before we go forward?” Ronduen responded,
“No, your Honor.” The court added, “If any other questions come
up, please let us know . . . .” The court then recited the terms of
the agreement, and Ronduen stated she understood. Ronduen’s
attorney, Sharon Babakhan, requested time to talk with
Ronduen, and the court called another matter while Ronduen and
Babakhan conferred. Babakhan then stated Ronduen was ready
to proceed. The court responded, “I don’t want to rush her” and
inquired of Ronduen, “Are you sure that you’re ready to go
forward at this time?” Ronduen answered “Yes.”
The prosecutor represented that Ronduen faced a
maximum of 14 years in state prison on the charges, and “there
2 Judge Elaine Lu presided over the 2015 plea hearing.
3
were even more charges that could have been added after [the]
preliminary hearing.” Babakhan concurred with the prosecutor’s
statement. The court advised Ronduen that if she were convicted
on all counts and all enhancements were found true, she faced a
maximum sentence of 14 years in prison, and Ronduen affirmed
that she understood. The court advised Ronduen as to the
consequences of her plea, “If you are not a United States citizen,
your no contest plea will cause you to be deported, removed,
excluded from admission to the United States, denied re-entry,
denied naturalization, and denied amnesty.” The court asked
Ronduen if she understood, and she responded, “Yes.”
After further advisements, the trial court asked Ronduen,
“[D]o you understand everything I have told you so far about the
consequences of your plea?” Ronduen said, “Yes.” She also
confirmed she had discussed all the consequences with her
attorney, and she did not have any questions. The court advised
Ronduen of her constitutional and statutory rights, and Ronduen
stated she understood and waived her rights. In response to the
court’s further inquiry, she stated she did not need more time to
speak with her attorney before entering her plea.
Ronduen entered a plea of no contest, and Babakhan joined
in the waivers of Ronduen’s constitutional rights, concurred in
the plea, and stipulated to a factual basis based on the arrest
report. The trial court found Ronduen’s waivers and plea were
voluntary, knowing, and intelligent, and there was a factual basis
for the plea. The court found Ronduen guilty and, pursuant to
the negotiated plea, sentenced her to six years in state prison,
entered a 10-year criminal protective order requiring she not
have physical contact with her children, and ordered lifetime sex
offender registration and victim restitution.
4
B. Ronduen’s Motion To Vacate Conviction
After completing her sentence in state prison, Ronduen was
transferred to the custody of the Department of Homeland
Security, which commenced deportation proceedings. On May 1,
2020 an immigration judge ordered Ronduen removed to the
Philippines.3
On August 21, 2020 Ronduen filed a motion to vacate
conviction under section 1473.7.4 Ronduen argued that
Babakhan failed to advise her of the specific consequences of her
plea: “[Ronduen] was not ever advised, and she did not
understand that her plea would result in the rescission of her
[lawful permanent resident] status and deportation as an
‘aggravated felon’”5 In her declaration in support of the motion to
3 As of the date of Ronduen’s motion to vacate her conviction,
her appeal to the Board of Immigration Appeals was pending.
4 In her motion to vacate her conviction, Ronduen stated her
motion was also based on section 1016.5. This section requires
the vacation of judgment and withdrawal of a plea where the trial
court failed to provide the advisement, “If you are not a citizen,
you are hereby advised that conviction of the offense for which
you have been charged may have the consequences of
deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United
States.” (§ 1016.5, subds. (a) & (b).) However, Ronduen did not
assert any defect in the trial court’s advisement in her motion,
and on appeal she does not argue any error under section 1016.5.
5 The parties do not dispute that a conviction for a violation
of section 288, subdivision (a), is an “aggravated felony” that
makes Ronduen deportable and ineligible for relief from
deportation. (See 8 U.S.C. § 1227(a)(2)(A)(iii) [conviction of an
aggravated felony grounds for deportation]; 8 U.S.C.
5
vacate, Ronduen averred that Babakhan visited her only once
while in jail, and after that, Babakhan only spoke with Ronduen
at the plea hearing. Ronduen was scared and confused, and
Babakhan told her that she needed to trust Babakhan’s advice to
accept the plea because if Ronduen tried to fight the case, she
could go to prison for up to 14 years. Babakhan helped Ronduen
to understand non-immigration aspects of her sentence, but
Babakhan “never told [Ronduen] that [her] conviction is an
‘aggravated felony’ and a ‘crime involving moral turpitude’ under
immigration law.” Babakhan “did not explain to [Ronduen] that
this conviction makes [her] mandatorily deportable and ineligible
for the most common forms of relief from deportation.” Ronduen
believed she would “actually be released and allowed to rebuild
[her] life in the U.S.,” and she “was not aware that [she] would be
transferred directly to immigration custody, automatically denied
bail under immigration law based on this conviction, and
mandatorily detained while fighting [her] immigration case.”
Ronduen stated that if she had been “told of the real immigration
consequences before agreeing to enter a plea,” she would have
requested time to consult with an immigration attorney and
“would have presented these immigration consequences to the
prosecution to seek a plea bargain without immigration
consequences.” Ronduen believed she could have received a
better outcome by negotiating “an immigration-safe plea,” and if
not, she would have gone to trial rather than face permanent
§ 1227(a)(2)(E) [conviction of sexual abuse of a child grounds for
deportation]; 8 U.S.C. § 1229b(a) [removal of permanent resident
may be canceled where the resident has not been convicted of an
aggravated felony].)
6
exclusion. Ronduen would have “tried all that [she] could” to
remain in the United States with her sons and family.
In opposition to the motion, the People argued that the
transcript of the plea hearing showed that Ronduen was given
multiple opportunities to consult with Babakhan regarding her
plea and did so, and multiple times the trial court asked if
Ronduen was prepared to proceed with the plea. The court
expressly advised Ronduen of the immigration consequences,
including deportation and exclusion from the United States, and
Ronduen stated without any hesitation that she understood and
had consulted with her attorney. Ronduen faced a maximum
sentence of 14 years on the charged offenses, and the prosecutor
and Babakhan both acknowledged at the hearing that Ronduen
faced the possibility of additional charges if the case proceeded to
a preliminary hearing. Under these circumstances, the People
argued, Ronduen’s statement that she would not have pleaded no
contest to anything other than a nondeportable offense was not
credible.
At the November 10, 2020 hearing on the motion to vacate,
Babakhan testified as to her representation of Ronduen in
connection with the 2015 negotiated plea.6 Babakhan stated she
met with Ronduen on two or three occasions where Ronduen was
jailed. Babakhan also talked with Ronduen several times in
“lock-up” or an attorney room when Ronduen came to court for
hearings. The prosecutor’s original plea offer had been for a
6 Judge Suzette Clover presided over the hearing on
Ronduen’s motion to vacate. At the hearing, Ronduen’s attorney,
Robert Jacobs, agreed with the trial court that Ronduen had
waived her attorney-client privilege by placing her attorney
communications at issue in the motion to vacate.
7
sentence in the double digits, but the prosecutor agreed to lower
the offer to six years in state prison after Babakhan retained a
forensic psychologist who opined that Ronduen had been
suffering from severe depressive disorder that made her highly
vulnerable to exploitation. Babakhan was aware from the
beginning of the representation that Ronduen was not a citizen of
the United States, and Babakhan consulted with a friend who
was an immigration attorney and determined “288s are never
safe for immigration purposes.” Babakhan “explained to
[Ronduen] and specifically told her there is no ‘‘but’ and ‘if’ and
that she will be deported because of the charges.” Babakhan
discussed the plea and its deportation consequences with
Ronduen on at least two occasions prior to the plea hearing, and
Ronduen’s assertion that she first heard of the six-year offer on
the date of the hearing was false.
Ronduen asked Babakhan how much time there would be
after finishing her sentence before she was deported and “does
she have time to fight it,” and Babakhan said she did not know.
Babakhan consulted the husband of Ronduen’s sister, who
worked for the California Department of Corrections and
Rehabilitation, and Babakhan informed Ronduen, “It’s not
overnight, and she will have time to hire an immigration attorney
and fight her case.” Babakhan added, “But I told her she’d be
deported, no question.” Asked if Babakhan ever represented to
Ronduen that she could prevail if she tried to fight the
deportation, Babakhan answered, “I am not an immigration
attorney. I would never make that representation to her.”
Ronduen was extremely emotional during the plea hearing,
and they had to stop several times while the court and the
prosecutor were talking. But Ronduen never indicated she did
not want to proceed with the plea or that she would prefer to
8
proceed to trial if the plea would lead to deportation. Asked if
Ronduen ever made “any comments or statements to you
indicating that avoiding deportation was her priority, no matter
how much the sentence was reduced in the People’s offer,”
Babakhan answered “No.”
On cross-examination, Babakhan testified she suggested an
alternative plea for a four-year sentence to the prosecutor, and
the prosecutor responded there was “absolutely . . . no way we’re
going to agree to anything different” from a conviction under
section 288. Babakhan did not make a counteroffer with an
immigration-safe plea because “[t]hey were not amenable to that.
The D.A. told me they would not consider it.” “The option was to
go to the prelim and risk higher prison time or take the deal.
. . . I put the option in front of [Ronduen] and asked what she
wanted to do. She decided. And she wanted the offer.” Asked to
admit she did not discuss the immigration consequences of the
plea with Ronduen on the day of the hearing, Babakhan
disagreed, testifying, “I did. We went over everything.” Asked
what advice Babakhan gave Ronduen regarding what would
happen after Ronduen completed her sentence, Babakhan
testified, “I did not give her advice. I said she’ll be done with the
sentence. She’s not going to be free. She will be picked up by
immigration, and she will go to immigration custody, and she can
fight the case by hiring an immigration attorney. And that’s
exactly what happened.”
After hearing argument from counsel, the trial court denied
Ronduen’s motion. The court concluded, “It seems to me that the
evidence established that [Ronduen], in fact, did understand
what was happening; that she was upset with what was
happening. . . . [¶] . . . [T]here is no requirement that an
immigration attorney actually talk to a defendant. Miss
9
Babakhan indicated she had consulted with an immigration
attorney, and the immigration attorney gave her correct advice.
She passed that advice on. And it seems to me that counsel met
the requirements and that Miss Ronduen was correctly advised.
And frankly, there is little chance of not only an immigration-safe
plea but a considerable chance of additional charges being made.”
Ronduen timely appealed.
DISCUSSION
A. Governing Law and Standard of Review
Section 1473.7, subdivision (a)(1), provides that a person
who is no longer in criminal custody may file a motion to vacate a
conviction or sentence on the basis “[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 plea of guilty or nolo contendere. A finding of
legal invalidity may, but need not, include a finding of ineffective
assistance of counsel.”7 (See People v. Rodriguez (2021) 68
Cal.App.5th 301, 305, 308, 310; People v. Rodriguez (2021) 60
7 Assembly Bill No. 1258 (2021-2022 Reg. Sess.) amended
section 1473.7, subdivision (a)(1), effective January 1, 2022, to
expand relief to include vacation of a sentence. (Stats. 2021,
ch. 420, § 1.) The amended section provides as to the basis for a
motion to vacate, “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.” (Italics added.) The amendment is not at
issue here.
10
Cal.App.5th 995, 1002.) “A successful section 1473.7 motion
requires a showing, by a preponderance of the evidence, of a
prejudicial error that affected the defendant’s ability to
meaningfully understand the actual or potential immigration
consequences of a plea.” (People v. Vivar (2021) 11 Cal.5th 510,
517 (Vivar); see § 1473.7, subd. (e)(1) [“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).”].)
“What someone seeking to withdraw a plea under
section 1473.7 must show is more than merely an error
‘damaging the moving party’s ability to meaningfully understand,
defend against, or knowingly accept the actual or potential
adverse immigration consequences’ of the plea. [Citation.] The
error must also be ‘prejudicial.’” (Vivar, supra, 11 Cal.5th at
p. 528.) “[S]howing prejudicial error under section 1473.7,
subdivision (a)(1) means demonstrating a reasonable probability
that the defendant would have rejected the plea if the defendant
had correctly understood its actual or potential immigration
consequences.” (Vivar, at p. 529; accord, People v. Rodriguez,
supra, 60 Cal.App.5th at p. 1003 [“A defendant requesting relief
under section 1473.7 bears the burden of establishing by a
preponderance of evidence that there is a reasonable probability
that he or she would not have entered into the plea agreement if
he or she had meaningfully understood the associated adverse
immigration consequences.”].) “When courts assess whether a
petitioner 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,
11
and whether the defendant had reason to believe an immigration-
neutral negotiated disposition was possible.” (Vivar, at pp. 529-
530; accord, People v. Rodriguez, supra, 68 Cal.App.5th at
pp. 321-322; see People v. Mejia (2019) 36 Cal.App.5th 859, 866
[“The key to the statute is the mindset of the defendant . . . at the
time the plea was taken.”].)
“We review . . . rulings [under section 1473.7]
independently.” (Vivar, supra, 11 Cal.5th at p. 524; accord,
People v. Lopez (2021) 66 Cal.App.5th 561, 574 [“a motion to
withdraw a plea under section 1473.7 is reviewed independently
rather than for abuse of discretion”].) “‘[U]nder independent
review, an appellate court exercises its independent judgment to
determine whether the facts satisfy the rule of law.’ [Citation.]
When courts engage in independent review, they should be
mindful that “‘[i]ndependent review is not the equivalent of de
novo review . . . .’” [Citation.] An appellate court may not simply
second-guess factual findings that are based on the trial court’s
own observations . . . . In section 1473.7 proceedings, appellate
courts should . . . give particular deference to factual findings
based on the trial court’s personal observations of witnesses.”
(Vivar, at pp. 527-528; accord, People v. Ogunmowo (2018)
23 Cal.App.5th 67, 76 [On independent review, “[w]e accord
deference to the trial court’s factual determinations if supported
by substantial evidence in the record, but exercise our
independent judgment in deciding whether the facts demonstrate
trial counsel’s deficient performance and resulting prejudice to
the defendant.”].) “Ultimately it is for the appellate court to
decide, based on its independent judgment, whether the facts
establish prejudice under section 1473.7.” (Vivar, at p. 528.)
12
B. Ronduen Failed To Meet Her Burden To Show She Did Not
Understand the Immigration Consequences of Her Plea
Ronduen contends Babakhan never explained to her the
“full panoply of immigration consequences” from her plea,
including that she would face mandatory deportation, be
ineligible for any relief given the nature of her offenses, face
permanent exclusion, and be subject to mandatory detention
after serving her sentence. Ronduen also argues Babakhan’s
advice concerning deportation was confusing because Babakhan
told Ronduen that after serving her sentence she would have
time to find an immigration lawyer and fight her case, suggesting
she might not be deported. Ronduen’s arguments are not
persuasive.
There was strong evidence Ronduen was fully advised and
understood the immigration consequences of her plea, including
certain deportation, ineligibility for relief, permanent exclusion,
and immigration detention while she fought her deportation. At
the plea hearing, Ronduen confirmed she understood the trial
court’s immigration advisement she would be deported, excluded
from the United States, and denied reentry and relief, and she
acknowledged she had discussed the immigration consequences
with her attorney. Further, before entering her plea, Ronduen
affirmed she did not have any further questions. Babakhan
testified she advised Ronduen on at least two occasions prior to
the plea hearing that a section 288 conviction is “never safe” and
“there is no ‘but’ and ‘if’ and that she will be deported because of
the charges.” Babakhan “went over everything” again on the day
of the plea. Babakhan told Ronduen that following her plea,
“[s]he’s not going to be free. She will be picked up by
immigration, and she will go to immigration custody, and she can
fight the case by hiring an immigration attorney.” Babakhan did
13
not tell Ronduen she could be released from custody—only that
deportation was not “overnight, and she will have time to hire an
immigration attorney and fight her case.” 8
Ronduen relies on her own declaration to show she did not
meaningfully understand the consequences of her plea. Ronduen
declared Babakhan “never told me that my conviction is an
‘aggravated felony’ and a ‘crime involving moral turpitude’ under
immigration law.” And she claimed Babakhan never explained
that the conviction made her deportation mandatory without the
possibility of relief, or that she would be transferred directly to
immigration custody and detained “while fighting [her]
immigration case.” But the trial court, in finding Ronduen “did
understand what was happening” at the time she entered her
plea, implicitly found Babakhan’s testimony (that she went over
everything), coupled with the record from the plea hearing, more
credible than Ronduen’s declaration to the contrary. (See People
v. Tapia (2018) 26 Cal.App.5th 942, 953 [trial court “implicitly
found” defendant’s “self-serving declaration” stating he was not
told his plea would lead to deportation was not credible where the
plea hearing transcript reflected the court’s immigration
8 Ronduen’s exhibits show she did retain an immigration
attorney to challenge her deportation. However, Ronduen did not
argue below, and she did not aver in her declaration, that
Babakhan’s advice that she would have time to hire an attorney
to challenge her deportation caused Ronduen to misunderstand
the deportation consequences of her plea. Thus, Ronduen
forfeited this argument. (Johnson v. Greenelsh (2009) 47 Cal.4th
598, 603 [“‘issues not raised in the trial court cannot be raised for
the first time on appeal’”].) Even absent forfeiture, Ronduen’s
asserted confusion is inconsistent with Babakhan’s testimony as
to what she told Ronduen.
14
advisement followed by a break for defense counsel to verify the
immigration consequences, and defense counsel stated in his
declaration he advised the defendant during the break of the
immigration consequences, including deportation proceedings].)
We defer to the trial court’s credibility findings. (Vivar, supra, 11
Cal.5th at p. 528; Tapia, at p. 953.)
While there is no evidence Babakhan specifically discussed
whether Ronduen’s offenses were “aggravated felonies” and
“crimes of moral turpitude,” or that Ronduen would be ineligible
for relief from deportation, Babakhan made it clear—“no ‘but’ and
“if’”—Ronduen would be deported, “no question.” And Ronduen
did not request to confer with Babakhan further after the trial
court’s advisement that Ronduen would be deported and
ineligible for relief. (See People v. Perez (2018) 19 Cal.App.5th
818, 829-830 [“the record belies [the defendant’s] contention that
he did not meaningfully understand the immigration
consequences of his plea” because “the superior court explicitly
informed [the defendant] that if he were to plead guilty, he would
be deported from the United States”]; see also People v. Tapia,
supra, 26 Cal.App.5th at pp. 952-953 [“[a]fter being specifically
advised by the trial court his plea would lead to his deportation
and denial of readmission to the United States, [the defendant]
did not request more time to speak with counsel or further
consider the appropriateness of entering a plea,” indicating he
“had no need for a further conversation” with his trial counsel
because counsel had already advised him].)
Finally, Ronduen’s assertion she did not know she would be
detained after her sentence is contradicted by Babakhan’s
testimony she told Ronduen she would go directly into
immigration custody. Other inconsistencies between Ronduen’s
declaration and Babakhan’s testimony, including Ronduen’s
15
assertion she only met with Babakhan once in jail (instead of
several times in jail and at court), cast further doubt on
Ronduen’s credibility.
Ronduen therefore failed to carry her burden to establish
by a preponderance of the evidence she did not meaningfully
understand the immigration consequences of her plea at the time
it was entered, and accordingly the trial court did not err in
denying the motion to vacate her conviction. 9 (§ 1473.7,
subd. (e)(1); Vivar, supra, 11 Cal.5th at p. 517.)
9 Because we find Ronduen failed to meet her burden to
prove by a preponderance of the evidence that she did not
meaningfully understand the consequences of her plea, we do not
reach Ronduen’s contention that had she been properly advised,
she would have negotiated an immigration-safe plea or taken her
case to trial. However, we note Babakhan testified the
prosecutor made clear the People would “‘absolutely’” not offer a
plea other than to lewd act on a child under section 288, and
Ronduen has not presented any argument how she would have
obtained a better result at trial given the evidence of her conduct
with her son (including recovered Internet communications with
Andrusick and her admissions to FBI investigators).
16
DISPOSITION
The order denying Ronduen’s motion to vacate her
conviction is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
IBARRA, J.*
* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
17