People v. DeJesus ( 2019 )


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  • Filed 7/26/19
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    THE PEOPLE,                          B293096
    Plaintiff and Respondent,      (Los Angeles County
    Super. Ct. No. MA068940)
    v.
    NICOLAS DEJESUS,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Los
    Angeles County, Lisa Mangay Chung, Judge. Affirmed.
    Ruzanna Poghosyan for Defendant and Appellant.
    Xavier Becerra, Attorney General, Gerald A. Engler, Chief
    Assistant Attorney General, Lance E. Winters, Assistant
    Attorney General, Zee Rodriguez and Paul S. Thies, Deputy
    Attorneys General, for Plaintiff and Respondent.
    _________________________
    Nicolas DeJesus (DeJesus) appeals an order denying his
    motion to vacate and withdraw his 2016 plea of no contest to
    assault with a firearm. (Pen. Code, § 245, subd. (a)(2).)1 He
    contends that although his trial attorney advised him of the
    immigration consequences of his plea, he rendered ineffective
    assistance of counsel by refusing to try his case, failing to
    investigate the facts, and failing to negotiate an immigration-
    neutral disposition. (§ 1473.7, subd. (a)(1).) We conclude that
    DeJesus’s plea was not legally invalid as he does not offer
    sufficient evidence of a prejudicial error which damaged his
    ability to defend against the adverse immigration consequences
    of his plea. (Strickland v. Washington (1984) 
    466 U.S. 668
    , 688;
    People v. Camacho (2019) 32 Cal.App.5th 998 (Camacho).)
    Furthermore, based upon DeJesus’s custodial status, he is not
    eligible for relief under the statute. We therefore affirm.
    BACKGROUND
    DeJesus immigrated from the Philippines in 1992 and is a
    permanent legal resident. He is married to a United States
    citizen and is a father to seven children, all United States
    citizens.
    On June 15, 2016, DeJesus bought a refrigerator from a
    Home Depot store.2 He put it in his vehicle and returned to the
    store with the receipt. He selected another refrigerator,
    approached the cashier, showed her the receipt, advised her that
    he already purchased the refrigerator, and purchased trash bags.
    1     All further statutory references are to the Penal Code
    unless otherwise indicated.
    2     Because DeJesus pled no contest prior to trial, the facts are
    from the preliminary hearing transcript. The loss prevention
    agent testified at the preliminary hearing.
    2
    While exiting the store, a loss prevention agent apprehended
    him. DeJesus initially complied with the agent’s commands, but
    then attempted to flee on foot. The agent struggled with
    DeJesus, handcuffed him, and escorted him back into the store.
    DeJesus drew a loaded .22-caliber pistol from his pocket and
    pointed it at the agent. The agent succeeded in subduing and
    disarming him, and police recovered the loaded pistol.
    DeJesus was charged with assault with a firearm (§ 245,
    subd. (a)(2)), shoplifting (§ 459.5), and an enhancement for
    personal use of a firearm (§ 12022.5). Pursuant to a plea
    agreement, DeJesus pled no contest to one count of assault with a
    firearm (§ 245, subd. (a)(2)) in exchange for the high term of four
    years in the state prison. The trial court dismissed the
    shoplifting charge and the firearm use enhancement.
    During his change of plea hearing, there was a specific
    colloquy about immigration consequences and DeJesus
    acknowledged understanding them. The trial court advised, “[i]f
    you are not a citizen of the United States, your plea would result
    in your deportation, exclusion from admission into the United
    States and denial of naturalization.” DeJesus denied having
    been forced or threatened to plead no contest.
    The charge to which DeJesus pled is an aggravated felony
    under federal immigration law, subjecting him to permanent
    removal from the United States.3 Approximately one year after
    his plea and sentencing hearing, federal authorities initiated
    3     On appeal, he avers, and the People do not dispute, that
    assault with a firearm pursuant to section 245, subdivision (a)(2)
    is an aggravated felony for purposes of federal immigration law,
    and subjected him to permanent removal from the United States.
    3
    removal proceedings against him.4 After serving his state prison
    sentence, United States Immigration and Customs Enforcement
    (ICE) took him into custody.
    He moved to vacate his plea pursuant to section 1473.7,
    subdivision (a)(1) on July 6, 2018. He argued that although his
    trial attorney properly advised him of the immigration
    consequences, he failed to defend against them by going to trial,
    thoroughly investigating the case, or exploring alternative
    dispositions. Along with his own declaration, DeJesus submitted
    records regarding his legal status and a declaration from his
    post-conviction attorney.
    DeJesus’s post-conviction attorney declared that the trial
    attorney’s file did not contain any notes or research about an
    alternative plea. The file notes indicated that the trial attorney
    had advised DeJesus that the struggle with the gun was out of
    the camera’s view, and that she did not see DeJesus pull the gun
    out of his pocket and point it at anyone. DeJesus did not submit
    a declaration from his trial attorney.
    In support of his motion to vacate, DeJesus declared that
    his trial attorney, a public defender, refused to take the case to
    trial, instead telling him “he would have to hire a good criminal
    defense attorney to fight the case.” The trial attorney also
    warned him that he could face 14 years in the state prison if he
    rejected the prosecutor’s offer. DeJesus further declared that he
    could not afford to hire an attorney.
    The trial court denied the motion. It acknowledged that
    advisement of immigration consequences “may not be totally
    determinative of the issue,” and that it had not been presented
    4       DeJesus’s application for asylum was denied on May 17,
    2018.
    4
    with any evidence from DeJesus’s trial attorney. The trial court
    ruled that DeJesus had failed to show prejudice on ineffective
    assistance of counsel grounds, or by “showing that he would have
    rejected the plea bargain had he known of the adverse
    immigration consequences.”
    DISCUSSION
    DeJesus sought relief under section 1473.7,
    subdivision (a)(1), which allows a person who is no longer in
    criminal custody to move to vacate a conviction if it is legally
    invalid due to prejudicial error damaging the moving party’s
    ability to meaningfully defend against the actual or potential
    adverse immigration consequences of a no contest plea.
    I. History of section 1473.7
    Effective January 1, 2017, the Legislature passed Assembly
    Bill No. 813 (2015–2016 Reg. Sess.) adding section 1473.7 to the
    Penal Code. (Stats. 2016, ch. 739, § 1.) The section provided
    relief to those people who were “no longer imprisoned or
    restrained.” (§ 1473.7.) According to the author, the bill was
    necessary because at the time, “under California law, there [was]
    no vehicle . . . for a person who is no longer in actual or
    constructive custody to challenge his or her conviction based on a
    mistake of law regarding immigration consequences or ineffective
    assistance of counsel in properly advising of these consequences
    when the person learns of the error post-custody.” (Sen. Com. on
    Public Safety, Com. on Assem. Bill No. 813 (2015–2016 Reg.
    Sess.) July 7, 2015, at p. 6.)
    In 2018, the Legislature amended section 1473.7 effective
    January 1, 2019. (Stats. 2018, ch. 825, § 2.) The amendment
    changed the aforementioned language and now provides in
    5
    relevant part: “A person who is no longer in criminal custody
    may file a motion to vacate a conviction.” (§ 1473.7, subd. (a)(1),
    italics added.) The issue therefore is what the italicized language
    means.
    The interpretation of a statute is a question of law that we
    review de novo. (Goodman v. Lozano (2010) 
    47 Cal. 4th 1327
    ,
    1332.) To determine the most reasonable interpretation of a
    statute, we look to its legislative history and background. (Ibid.)
    “ ‘As in any case involving statutory interpretation, our
    fundamental task . . . 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.” ’ ” 
    (Camacho, supra
    , 32 Cal.App.5th at
    pp. 1006–1007.)
    In enacting the 2018 amendment, the Legislature declared,
    that its intent was to give courts the authority to rule on motions
    filed pursuant to section 1473.7, “provided that the individual is
    no longer in criminal custody.” (Stats. 2018, ch. 825, § 1(e).) The
    stated purpose of the clarification was to “ensure uniformity
    throughout the state and efficiency in the statute’s
    implementation.” (Stats. 2018, ch. 825, § 1(b).)
    6
    It is a settled principle of statutory construction that the
    Legislature “ ‘ “is deemed to be aware of statutes and judicial
    decisions already in existence, and to have enacted or amended a
    statute in light thereof.” ’ ” (People v. Scott (2014) 
    58 Cal. 4th 1415
    , 1424.) “Courts may assume, under such circumstances,
    that the Legislature intended to maintain a consistent body of
    rules and to adopt the meaning of statutory terms already
    construed.” (Ibid.)
    A month before the Governor signed the amendment into
    law, the First Appellate District issued People v. Cruz-Lopez
    (2018) 27 Cal.App.5th 212 (Cruz-Lopez). There, the appellate
    court reasoned that section 1473.7 “has a role in protecting a
    person’s immigration status in matters that arise years or even
    decades after the underlying criminal conviction. The statute
    seems applicable after other and more traditional collateral relief
    measures are not available. Generally, a petition for writ of
    habeas corpus or section 1016.5 relief are the means available to
    an appellant who is in custody or restrained and wishes to
    withdraw his plea because he was not advised of immigration
    consequences of his plea. [Citations.] Section 1473.7 permits
    persons unable to assert habeas corpus or section 1016.5 claims
    to have standing to challenge a conviction. To obtain relief per
    this statute, the individual cannot be in custody or under
    restraint.” (Cruz-Lopez, at pp. 220–221.)
    Cruz-Lopez relied upon long standing decisional law
    expanding the application for petitions for writ of habeas corpus
    to include persons who were determined to be in “constructive
    custody.” 
    (Cruz-Lopez, supra
    , 27 Cal.App.5th at pp. 220–221.)
    That law supported the court’s conclusion that the definition of
    “ ‘constructive custody’ ” included people on probation and parole.
    7
    (Ibid., citing People v. Villa (2009) 
    45 Cal. 4th 1063
    , 1069 (Villa).)
    In Villa, our Supreme Court explained: “the habeas corpus
    petitioner is deemed to be in constructive custody because he or
    she ‘is subject to “restraints not shared by the public generally”
    [citations] and ‘may later lose his liberty and be eventually
    incarcerated.’ ” (Villa, at p. 1069.) “Once a defendant has been
    released and is no longer subject to parole or probation, he or she
    is no longer in constructive custody.” (People v. Mbaabu (2013)
    
    213 Cal. App. 4th 1139
    , 1149.) The court in Cruz-Lopez held that
    section 1473.7, subdivision (a) is not applicable to a person on
    probation at the time the motion is presented because they are
    necessarily “imprisoned or restrained,” within the meaning of the
    statute. (Cruz-Lopez, at pp. 220–221.)
    II. DeJesus is not entitled to relief
    A. It appears DeJesus is not eligible for relief pursuant to
    section 1473.7
    The People contend that the trial court properly denied
    DeJesus’s motion because he was a parolee at the time the
    motion was filed and was thus in constructive custody within the
    meaning of the statute. Although they did not address the
    amended statute in their briefs, the People rely on 
    Villa, supra
    ,
    45 Cal.4th at page 1069, and In re Jones (1962) 
    57 Cal. 2d 860
    , in
    support of their contention. In Jones, a habeas corpus
    proceeding, our high court stated, “[a]ctual detention in prison is
    not an indispensable condition precedent to the issuance of
    habeas corpus, and persons on parole or on trial are, in a proper
    case, entitled to its issuance.” (Id. at p. 861, fn. 1.)
    DeJesus does not deny that he was on parole at the time
    the motion was filed. He argues that a plain reading of the
    statute does not exclude people on parole, and that to do so would
    8
    be unsupported by the legislative intent. As described, ante,
    DeJesus’s interpretation lacks merit.
    At his change of plea hearing, the trial court informed
    DeJesus that, upon his release from state prison, he would be
    placed on parole for up to three years. “[A] parole term is a
    component of the inmate’s original sentence, and parolees remain
    in the constructive custody of the [California Department of
    Corrections and Rehabilitation] for the duration of their fixed
    parole terms and are not formally ‘discharged’ from the
    department’s custody until the expiration of the parole term.”
    (In re E.J. (2010) 
    47 Cal. 4th 1258
    , 1282, fn. 9.) DeJesus was
    sentenced to serve a four-year state prison sentence on July 19,
    2016.5 On July 6, 2018, less than two years later, he filed the
    motion to vacate his plea. Thus, although not raised in the trial
    court, it appears that DeJesus was on parole and therefore was a
    person in “criminal custody” when the motion was filed. As
    explained, to be eligible for relief pursuant to section 1473.7,
    DeJesus cannot be in custody. Based upon existing law at the
    time of DeJesus’s motion, the legislative intent, and clarification
    of the statute through the subsequent amendment, we conclude
    that people on parole are not eligible for relief pursuant to section
    1473.7.
    5      DeJesus was awarded 69 days of credit for time spent in
    custody, and was not ordered to serve his sentence in the county
    jail pursuant to section 1170, subdivision (h)(1) or (2). These
    facts further show that he was on parole at the time ICE
    detained him.
    9
    B. DeJesus does not offer sufficient evidence of a prejudicial
    error
    Even if DeJesus were eligible for relief, the trial court
    properly denied his motion on the merits. He contends that he
    was deprived of the effective assistance of counsel because
    counsel refused to try his case to a jury, failed to review a video of
    the incident or to investigate an “immigration safe plea.”
    However, he fails to offer sufficient evidence of counsel’s error, or
    resulting prejudice.
    At the time DeJesus filed his motion, section 1473.7,
    subdivision (a)(1) provided in relevant part, “[a] person no longer
    imprisoned or restrained 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 . . . nolo
    contendere.” The existence of any of the grounds for relief
    specified in subdivision (a)(1) must be established by a
    preponderance of the evidence. (Former § 1473.7, subd. (e)(1).)
    We independently review the order denying the motion to
    vacate which “ ‘presents a mixed question of fact and law.’ ” (In
    re Resendiz (2001) 
    25 Cal. 4th 230
    , 248; see People v. Ogunmowo
    (2018) 23 Cal.App.5th 67, 76.) We defer to the trial court’s
    factual determinations if supported by substantial evidence, but
    exercise our independent judgment to decide whether the facts
    demonstrate deficient performance and resulting prejudice.
    (Resendiz, at p. 249.)
    As first enacted, section 1473.7, subdivision (a)(1) required
    DeJesus to demonstrate that (1) counsel’s performance fell below
    an objective standard of reasonableness under prevailing norms,
    10
    as well as (2) a reasonable probability of a different outcome if
    counsel had rendered effective assistance. 
    (Camacho, supra
    , 32
    Cal.App.5th at p. 1005.) However, in 2018, the amendment
    added the following language to section 1473.7, subdivision (a)(1):
    “[a] finding of legal invalidity may, but need not, include a
    finding of ineffective assistance of counsel.” (Stats. 2018, ch. 825,
    § 2.)
    In enacting the measure, the Legislature clarified that the
    moving party “need not establish ineffective assistance of
    counsel,” and “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.” ’ ” 
    (Camacho, supra
    , 32
    Cal.App.5th at p. 1008.)
    Camacho recognized that the amendment unhinged the
    requirement of an ineffective assistance of counsel finding from a
    section 1473.7 claim and requires defendant “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.’ ” 
    (Camacho, supra
    , 32 Cal.App.5th at
    p. 1009.) To show prejudice, a person must show “by a
    preponderance of evidence that he would never have entered the
    plea if he had known that it would render him deportable.”
    (Id. at pp. 1011–1012; People v. Martinez (2013) 
    57 Cal. 4th 555
    ,
    565; Jae Lee v. United States (2017) 582 U.S.      [
    137 S. Ct. 1958
    ,
    1968–1969] (Lee); People v. 
    Ogunmowo, supra
    , 23 Cal.App.5th at
    p. 81.)
    11
    To obtain relief, DeJesus must show by a preponderance of
    the evidence that the plea was legally invalid due to a prejudicial
    error. The statute defines error as one that damaged his ability
    to meaningfully defend against the actual or potential adverse
    immigration consequences of his plea. To show prejudice,
    DeJesus must establish that he would not have entered the plea
    if he had known it would render him deportable. In assessing the
    latter element, courts should look to “contemporaneous evidence
    to substantiate a defendant’s expressed preferences.” 
    (Lee, supra
    ,
    582 U.S. __ [137 S.Ct. at p. 1967.])
    i. The trial attorney’s refusal to try the case
    DeJesus first contends that his trial attorney’s refusal to
    try his case to a jury damaged his ability to meaningfully defend
    against his immigration consequences. Presumably, this is
    because the outcome of a jury trial might have resulted in an
    acquittal, or, in his view, something less than a deportable
    offense. He stated via declaration at the evidentiary hearing that
    his trial attorney warned that if he rejected the prosecutor’s offer
    to plead to the assault alleged in count 1, he would face 14 years
    in state prison.6 He declared that although his public defender
    advised him that his plea “might subject [him] to deportation,” he
    would “have to hire a good criminal defense attorney to fight the
    case” if he wanted to go to trial. DeJesus declared that he could
    not afford a private attorney, but wished to “fight [his] case and
    to take it to a jury trial.” He told his lawyer that he “would take
    6     At the time of the plea, DeJesus was charged in count 1
    with assault with a firearm (§ 245, subd. (a)(2)) which carried a
    maximum of four years in the state prison, and a firearm use
    enhancement (§ 12022.5, subds. (a) & (d)) which would have
    exposed him to 10 additional years in the state prison.
    12
    responsibility for the crime [he] committed, like taking the
    refrigerator or possessing a gun, but [he] could not take
    responsibility for a crime that [he had] not committed.”
    During the plea colloquy, DeJesus, assisted by a Tagalog
    interpreter, was asked by the trial court whether anyone “made
    any other promises to you or tried in any way to force you to
    plead no contest to this felony charge,” or “threatened you or
    anyone close to you to get you to do so?” As to both questions,
    DeJesus answered, “No,” and never reported his trial attorney’s
    threat of abandonment to the trial court. Moreover, DeJesus
    never declared or stated during the plea colloquy or at the
    evidentiary hearing that the immigration consequences of his
    plea played any role in his desire for a jury trial. To the contrary,
    he declared that his primary concern was the weakness he
    perceived in the case, and his belief that he was not guilty of the
    charges.
    “Courts should not upset a plea solely because of post hoc
    assertions from a defendant about how he would have pleaded
    but for his attorney’s deficiencies. [Rather, they] should look to
    contemporaneous evidence to substantiate a defendant’s
    expressed preferences.” 
    (Lee, supra
    , 582 U.S.       [137 S. Ct. at
    p. 1967.]) While his trial attorney’s purported threat to cease
    representation is of concern, it is not corroborated by any
    contemporaneous evidence. DeJesus’s declaration also
    contradicted his prior statement at the change of plea hearing.
    Moreover, despite apparent conversations between the post-
    conviction attorney and the trial attorney, DeJesus did not offer
    testimony or a declaration on behalf of the latter attorney.
    DeJesus has not offered sufficient evidence of his insistence on
    going to trial.
    13
    ii. The trial attorney’s failure to investigate the facts of
    the case
    Next, DeJesus contends that the trial attorney rendered
    deficient assistance by failing to exploit weaknesses he perceived
    in the security camera footage, specifically, that the struggle with
    the gun was not caught on tape. In support of this claim,
    DeJesus declared that his trial attorney advised him “that he
    reviewed the recording and that the struggle with the gun was
    out of the camera view.” DeJesus’s post-conviction attorney
    confirmed that she also reviewed the video and “did not see
    Mr. DeJesus pulling the gun out of his pocket and pointing it at
    anyone.” She asserts in her declaration that when she spoke
    with the trial attorney nearly two years after the preliminary
    hearing he could not remember when he received the video
    footage of the incident from the district attorney’s office. DeJesus
    suggests that these facts show that his trial attorney did not
    review the video prior to the preliminary hearing. Again,
    DeJesus does not provide any evidence from the trial attorney.
    Moreover, the declarations fail to address the fact that two
    material witnesses testified at the preliminary hearing on behalf
    of the People. The victim of the assault identified DeJesus as the
    perpetrator, described the theft and struggle, identified the gun,
    and affirmed that DeJesus pointed it at him. The deputy sheriff
    who responded testified that he obtained the firearm from the
    victim, and that it was loaded with five .22-caliber rounds.
    DeJesus’s suggestion that the video footage revealed weaknesses
    in the case, or that his trial attorney failed to review them are not
    supported by the evidence.
    iii. The trial attorney’s failure to investigate an
    immigration-safe disposition
    14
    DeJesus next contends that his public defender’s failure to
    negotiate an immigration safe disposition similarly affected his
    ability to defend against the immigration consequences. In
    support of this claim, his post-conviction attorney declared that
    the defense file did not contain notes or any research about an
    alternative plea to sections 254007 or 25850.8
    In support of this contention, DeJesus relies upon People v.
    Bautista (2004) 
    115 Cal. App. 4th 229
    , 240–242, which held that
    “[d]efense attorneys are required to try to defend against the
    negative immigration consequences of a guilty plea by exploring
    alternative dispositions that can mitigate the harm.” In
    Bautista, the defendant filed a petition for writ of habeas corpus
    contending that his trial counsel’s representation fell below the
    standard for effective assistance of counsel based upon his failure
    to advise him that deportation and exclusion from readmission
    was mandatory in his case under federal law. (Id. at p. 237.) In
    Bautista, the defendant offered into evidence statements from
    three witnesses. First, he offered a declaration from his trial
    attorney who admitted that he sought a lenient sentence as
    7      Section 25400 states in relevant part, “(a) [a] person is
    guilty of carrying a concealed firearm when the person does any
    of the following: [¶] . . . [¶] (2) Carries concealed upon the person
    any pistol, revolver, or other firearm capable of being concealed
    upon the person.”
    8      Section 25850 states in relevant part, “(a) [a] person is
    guilty of carrying a loaded firearm when the person carries a
    loaded firearm on the person or in a vehicle while in any public
    place or on any public street in an incorporated city or in any
    public place or on any public street in a prohibited area of
    unincorporated territory.”
    15
    opposed to an immigration neutral disposition. (Id. at p. 238.)
    Second, an immigration law expert testified that he believed the
    prosecution would have accepted a plea to a greater, immigration
    neutral charge. (Id. at p. 240.) Finally, the defendant in
    Bautista himself declared that he would not have agreed to enter
    a plea if he had known the immigration consequences. (Ibid.)
    The appellate court issued an order to show cause to the trial
    court for a reference hearing. (Id. at p. 242.)
    Unlike Bautista, DeJesus fails to offer any affirmative
    evidence from which a reasonable fact-finder could conclude that
    his trial attorney failed to negotiate or consider an immigration
    neutral disposition. He did not offer any evidence from the
    prosecutor, his public defender, or an immigration expert on this
    point. Furthermore, he fails to identify any “immigration-neutral
    disposition to which the prosecutor was reasonably likely to
    agree.” (People v. Olvera (2018) 24 Cal.App.5th 1112, 1118.) The
    only evidence in support of DeJesus’s claim is his post-conviction
    attorney’s observation of an omission—that she reviewed the file
    and saw that it did not contain notes or research about an
    alternative plea to sections 25400 or 25850. DeJesus’s claim that
    his trial attorney erred by failing to investigate an immigration-
    neutral disposition is not supported by sufficient evidence.
    C. Prejudice
    Even assuming DeJesus’s counsel erred, DeJesus fails to
    show prejudice. To support his claim, he must demonstrate “by a
    preponderance of evidence that he would never have entered the
    plea if he had known that it would render him deportable.”
    
    (Camacho, supra
    , 32 Cal.App.5th at pp. 1011–1012.) Similarly,
    in Lee, the defendant sought to vacate his conviction on the
    ground that, in accepting the plea, he received ineffective
    16
    assistance of counsel in violation of the Sixth Amendment.
    
    (Lee, supra
    , 582 U.S.     [137 S.Ct. at p. 1962.]) To establish
    prejudice, the defendant was required to show “ ‘a reasonable
    probability that, but for counsel’s errors, he would not have
    pleaded guilty and would have insisted on going to trial.’ ” (Id. at
    p. 1964, citing Hill v. Lockhart (1985) 
    474 U.S. 52
    , 59.)
    In Lee, both the defendant and his attorney testified that
    deportation was the determinative issue in Lee’s decision
    whether to accept the plea. 
    (Lee, supra
    , 582 U.S.      [137 S.Ct. at
    p. 1963.]) His attorney assured him that he would not be
    deported. (Ibid.) In fact, the charge to which he pled subjected
    him to mandatory deportation. (Ibid.) Lee’s attorney
    acknowledged that even though he thought Lee’s case was weak,
    if he had known Lee would be deported upon pleading guilty, he
    would have advised him to go to trial. (Ibid.) The United States
    Supreme Court found, “[W]hen the inquiry is focused on what an
    individual defendant would have done, the possibility of even a
    highly improbable result may be pertinent to the extent it would
    have affected the defendant’s decisionmaking.” (Id. at pp. 1967–
    1968.) The high court relied upon “contemporaneous evidence”
    to substantiate the defendant’s expressed preferences such as the
    “highly unusual” circumstances wherein Lee: (1) demonstrated
    that he would have rejected the plea had he known that it would
    lead to mandatory deportation; (2) testified, along with his
    attorney, that “ ‘deportation was the determinative issue’ ” in
    plea negotiations; and (3) his responses during the plea colloquy
    confirmed the importance he placed on deportation. (Id. at
    pp. 1967–1968.)
    Here, no similar showing was made. DeJesus’s wish to
    reject the plea was not based upon his deportability, but upon his
    17
    belief that he was not guilty. At the evidentiary hearing, his
    post-conviction attorney confirmed that DeJesus was advised of
    the immigration consequences of his plea to assault and that his
    motion was based upon deficient performance by the trial
    attorney, not misadvice. Thus, DeJesus fails to offer
    “contemporaneous evidence” that he would have refused to enter
    the plea if he had known it would render him deportable.
    We conclude that DeJesus’s claim of prejudicial error is not
    supported by substantial evidence. He fails to show by a
    preponderance of the evidence that his plea was “legally invalid”
    within the meaning of section 1473.7. The trial court did not err
    in denying his motion to vacate his plea.
    18
    DISPOSITION
    The order is affirmed.
    CERTIFIED FOR PUBLICATION
    MURILLO, J.*
    We concur:
    EDMON, P. J.
    EGERTON, J.
    *     Judge of the Los Angeles Superior Court, assigned by the
    Chief Justice pursuant to article VI, section 6 of the California
    Constitution.
    19