People v. Sood CA2/7 ( 2021 )

Filed 12/22/21 P. v. Sood CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B307247
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA039246-
v. 01)
VIKRAM SOOD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Suzette Clover, Judge. Affirmed.
Douglas Jalaie for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, and Charles S. Lee, Deputy Attorney
General, for Plaintiff and Respondent.
______________________
INTRODUCTION
Vikram Sood pleaded guilty under a negotiated plea
agreement, reducing his sentencing exposure from life to 21 years
in prison. Before his plea, he was told his conviction would result
in deportation. Nineteen years later, he moved to vacate his
conviction under Penal Code section 1473.7, subdivision (a)(1),
arguing he did not understand the adverse immigration
consequences of his plea.1 The trial court denied his motion.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sood’s Negotiated Plea and Sentencing
In February 2000, Sood was charged in an amended
information with first degree residential robbery, two counts of
first degree residential burglary, possession of a firearm by a felon,
and kidnapping to commit robbery. It was alleged that Sood used
a firearm and had previously committed a serious or violent
felony. Sood faced a maximum sentence of 29 years to life, plus 17
years in prison.
In March 2000, Sood entered a negotiated plea. Under the
plea deal, Sood pleaded guilty to a new count of kidnapping and
admitted enhancements in exchange for a 21-year prison sentence
and dismissal of the remaining counts.
During the plea hearing, the prosecutor explained the terms
of the plea to Sood, confirming nobody threatened or offered Sood
anything other than the deal to change his plea to guilty. Sood
acknowledged and responded to all the inquiries.
Before Sood pled, the prosecutor advised Sood of his rights
and the consequences of entering a plea, including adverse
1 Statutory references are to the Penal Code.
2
immigration consequences.2 And before she advised him, the
prosecutor confirmed Sood understood that he could stop the
proceedings if he did not understand: “If you have any questions
just say excuse me, and you will be able to talk to [your attorney]
until you get your questions cleared up. Okay?” Sood responded,
“Yes.”
Then, the prosecutor explained Sood’s rights, including his
right to a jury trial, Sood confirmed he understood and waived his
rights, and Sood’s attorney joined in the jury trial waiver.
The prosecutor also warned Sood of the consequences of his
plea, including deportation: “If you are not a citizen of the United
States entry of this plea will lead to deportation, denial of
naturalization and denial of re-entry into this country.” Sood did
not indicate he had any questions or concerns.
2 There is a clerical error in the appellate record. The clerk’s
transcript contains the reporter’s transcript from the plea hearing.
Three pages of the reporter’s transcript are out of order in the
clerk’s transcript. Read out of order, it appears the prosecutor told
Sood about the adverse immigration consequences of his plea after
he pleaded guilty. But the reporter’s transcript has its own
pagination. And read in the order of the reporter’s transcript
pagination, it is clear the prosecutor advised Sood of immigration
consequences before he pled.
That Sood was advised about adverse immigration
consequences before he pleaded guilty is consistent with the
court’s minute order. According to the order, Sood was advised, “If
you are not a citizen, you are hereby advised that a 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 law of
the United States.” Then the court found “that each waiver is
knowingly, understandingly, and explicitly made.” And finally a
“plea of guilty [was] entered” by Sood.
3
The prosecutor requested a moment with defense counsel off
the record. When they were back on the record, the prosecutor
asked to set Sood’s sentencing on a future date.
Finally, the trial court took Sood’s plea. Sood pleaded guilty
to kidnapping, admitting that he used a firearm during the
kidnapping, that he had a prior conviction, and that this plea
violated his probation. Sood’s attorney stipulated to a factual
basis and concurred in the plea. The court accepted and approved
the plea.
In April 2000, Sood was sentenced to 21 years in prison.
Before the sentence was imposed, Sood “state[d] there is no legal
cause why sentence should not be pronounced.”3
Sood’s Motion To Vacate
In January 2020, Sood filed a motion to vacate his conviction
and sentence under section 1473.7. Sood argued he failed to
meaningfully understand, defend against, or knowingly accept the
consequences of his plea due to ineffective assistance of counsel4
and because the court failed to advise him of the consequences
under section 1016.5. Additionally, Sood argued, “although the
Minute Order on page 6 states that [he] was advised of the
immigration consequences . . ., the actual transcript of the hearing
on page 8 indicates that the Deputy District Attorney read the
immigration consequences advise[ment], but was then interrupted
and never obtained any response from Mr. Sood.” Sood argued
these errors were prejudicial because he “swears that, had he
3 The appellate record only contains the court’s minute order
from the sentencing hearing, not the reporter’s transcript.
4 On appeal, Sood no longer argues his plea counsel was
ineffective.
4
known the consequences of deportation, he would have never
pleaded guilty and subjected himself to deportation from the
United States.”
Sood also filed a declaration stating the following:
1. On March 15, 2000, I plead[ed] guilty to violating Penal
Code section 207, a felony. At the time I was represented by
Attorney Rickard Santwier.
2. At the time of my plea I was [sic] understood that my
conviction would have some impact on my immigration
status but not that it would ultimately bar me altogether
from any possibility of remaining in the United States.
3. I had informed my attorney several times that me
remaining in the United States was paramount, and that I
would be willing to pursue trial if needed in order to insure
[sic] this. However, the information provided to me was that
of an assurance that ultimate deportation was avoidable.
4. On the day of my plea and sentencing I recall that I was
read some information regarding whether I understood that
I could be deported, however I was never provided an
adequate opportunity to exercise any objections I may have
had regarding this.
5. I am now detained with Immigration and Customs
Enforcement and after retaining counsel I have been made
aware that my deportation is guaranteed as a result of this
conviction, and furthermore that I will be permanently
banned from ever being able to return.
6. This was not my understanding and had I know [sic] this I
would have definitely sough [sic] an alternative plea or even
trial.
5
Sood did not include a declaration from Santwier or any other
objective evidence to corroborate his claim that he did not
understand the immigration consequences of his plea.
The People opposed the motion, arguing Sood failed to meet
his burden of proof because the prosecutor’s advisement to Sood
that his conviction would lead to deportation satisfied any
requirement the defense attorney had to advise Sood of
immigration consequences.
The Motion Hearing
In July 2020, the trial court heard argument on Sood’s
motion. The court began by acknowledging the “problem” in this
case: “Sood’s case pre-dates the legislation and the case law that
puts an extra duty, essentially, on defense counsel to explain the
immigration consequences; and even in some instances, in open
court.” The court said, “I understand and believe that Mr. Sood
would not have––potentially wouldn’t have accepted the plea if
he’d known that he would be deported.” However, the court
explained that “[t]he advisement here, it seems to me, was what’s
required by law” because “the admonishment, which is on the
record, said [Sood] will be [de]ported.” The court also
acknowledged that Sood was saying “if he had known he would
have been deported, that he wouldn’t have accepted the plea,” but
the court pointed out that Sood’s plea was “in the course of this
really serious charge where he avoids a heavier sentence by
accepting the plea.”
In response, Sood argued the new “requirement is not only
that the defendant be the recipient of the advise[ment] but that he
acknowledges it and he understands it.” Sood acknowledged “[h]e
was a recipient, but they never got an answer. If you don’t get an
answer, you would be hard-pressed to assume he understood it.”
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The People argued that Sood, in his declaration,
acknowledged that he was read “‘some information’” regarding
whether he understood he could be deported. The People argued
the prosecutor’s pre-plea advisement of adverse immigration
consequences “basically does the defense attorney’s job for him.”
In the People’s view, Sood failed to meet his burden on the motion
to vacate because he did not establish his plea counsel gave him
incorrect advice.
The court denied the motion. “It just seems to me that the
record is such that it can be inferred that Mr. Sood understood
before he pled that, as a result of the plea, he will be deported. . . .
I just don’t think there’s enough here for me to grant the motion.”
DISCUSSION
Sood argues the “sole issue on appeal is whether [he]
understood the immigration consequences when he accepted the
‘plea deal’ on this case.”
We disagree. To vacate his conviction under section 1473.7,
subdivision (a)(1), Sood had to establish not just error—that he did
not understand he would be deported—but prejudicial error—a
reasonable probability that if he had understood he would be
deported, he would not have pleaded to the negotiated deal.
Because Sood failed to prove prejudicial error by a preponderance
of the evidence, we affirm.
Relevant Law
Under section 1473.7, subdivision (a)(1), a defendant may
vacate a sentence or conviction if the defendant establishes a
prejudicial error that prevented the defendant from
understanding, defending against, or knowingly accepting the
immigration consequences of the defendant’s plea: “A person who
is no longer in criminal custody may file a motion to vacate a
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conviction or sentence [because] [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 party seeking relief under section 1473.7, subdivision
(a)(1), must make two showings: (1) 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, and (2) prejudice.5 (People v. Vivar
(2021) 11 Cal.5th 510, 528 (Vivar).) “[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. When courts assess whether
a petitioner has shown that reasonable probability, they consider
the totality of the circumstances.” (Vivar, at pp. 529-530.)
“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.” (Ibid.)
The moving party must establish a ground for relief by a
preponderance of the evidence under section 1473.7. (§ 1473.7,
subd. (e)(1).) “[W]hen a defendant seeks to withdraw a plea based
5 There are other requirements that must be met when
moving to vacate a conviction under section 1473.7, subdivision
(a)(1). (§ 1473.7, subds. (b)(2), (e)(1).) But we need not address
those requirements in this case since they are not challenged and
appear to have been met.
8
on inadequate advisement of immigration consequences, we have
long required the defendant corroborate such assertions with
‘“objective evidence.”’” (Vivar, supra, 11 Cal.5th at p. 530.)
“[T]he only finding that the court is required to make is
whether the conviction 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.”
(§ 1473.7, subd. (e)(4).)
Standard of Review
We review the denial of a section 1473.7 motion
independently. (Vivar, supra, 11 Cal.5th at pp. 524-525.)
“‘[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 . . . .”’ (Id. at p. 527.) The motion
is reviewed independently because of “the history of section
1473.7, the interests at stake in a section 1473.7 motion, the type
of evidence on which a section 1473.7 ruling is likely to be based,
and the relative competence of trial courts and appellate courts to
assess that evidence.” (Ibid.)
We need not defer to the trial court’s findings when the
evidence is documentary. When “the facts derive entirely from
written declarations and other documents [. . .] there is no reason
to conclude the trial court has the same special purchase on the
question at issue; as a practical matter, ‘[t]he trial court and this
court are in the same position in interpreting written declarations’
when reviewing a cold record in a section 1473.7 proceeding.”
(Vivar, supra, 11 Cal.5th at p. 528.)
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Sood Failed To Establish Prejudicial Error
We need not decide whether Sood established he did not
understand the immigration consequences of his plea because even
if he did, he failed to establish prejudice. Specifically, he did not
prove by a preponderance of the evidence that had he known his
conviction would lead to deportation, he would not have pleaded
guilty under the negotiated deal but rather risked life in prison.
Although Sood claimed he would not have accepted the plea
if he had known he would be deported, he did not support that
claim with any corroborating objective evidence. In his motion,
Sood “[swore] that, had he known of the consequence of
deportation, he would have never pleaded guilty and subjected
himself to deportation,” citing to his declaration. But nothing in
the record corroborates this statement. Sood did not include a
declaration from his plea counsel or even details in his own short
declaration. Moreover, there was no discussion about whether an
immigration-neutral resolution was requested or even possible.
On the contrary, that Sood avoided life in prison for the charges he
faced suggests his plea was well negotiated and strategic. On this
record, it is not reasonably probable that Sood would have rejected
a deal that substantially reduced his sentence.
Sood contends the trial court found him credible and
assumed he had proven prejudice. To begin with, we need not
defer to the court’s findings because the evidence is documentary.
(Vivar, supra, 11 Cal.5th at pp. 524-525, 527-528.) And in any
case, the court did not find that Sood established prejudice.
Although the court equivocated, it ultimately found Sood did not
meet his burden. The court said, “I understand and believe that
Mr. Sood would not have––potentially wouldn’t have accepted the
plea if he’d known that he would be deported.” The court also said,
“What [Sood is] saying is that if he had known he would have been
10
deported, that he wouldn’t have accepted the plea.” But the court
explained that the plea was made “in the course of this really
serious charge where [Sood] avoid[ed] a heavier sentence by
accepting the plea.” Ultimately, the court concluded, “It just
seems to me that the record is such that it can be inferred that
[Sood] understood before he pled that, as a result of his plea, he
will be deported. . . . I just don’t think there’s enough here for me
to grant the motion.”
Sood’s reliance on People v. Jung (2020) 59 Cal.App.5th 842(Jung), disapproved on another ground in Vivar, supra, 11 Cal.5th
at p. 526, fn. 4, and People v. Mejia (2019) 36 Cal.App.5th 859(Mejia) is misplaced. Both cases are distinguishable.
In Jung, the court of appeal reversed the denial of a section
1473.7 motion even though the defendant signed and initialed two
plea forms next to the clauses advising her of immigration
consequences and confirming she read and understood each clause.
(Jung, supra, at pp. 848, 857-858.) The defendant testified and
provided significant details surrounding her plea: She had signed
and initialed the plea form while in a holding cell next to the
courtroom; she did not ask her attorney to explain the form
because she “‘assumed that he knew what was best for [her]’”; she
did not previously speak to an immigration attorney and did not
know what consequences her plea would have; she explained she
never asked questions regarding the immigration consequences
once she learned of them because she “‘felt trapped’” and was “‘too
intimidated.’” (Jung, at pp. 857-858.) Additionally, she provided
contemporaneous evidence to bolster her claims by explaining her
background, where she came from, her life, family, friends, and
other ties to the United States. (Id. at p. 858.) The defendant’s
attorney also submitted a declaration explaining that the
defendant was overcharged: “‘[M]any of the criminal charges went
11
beyond the available evidence or the severity of the alleged
offense.’” (Ibid.)
In Mejia, the court of appeal reversed the denial of a section
1473.7 motion, even though the defendant had initialed the
immigration advisement on the plea form. The defendant said in
his declaration that “he would have never pleaded guilty had he
known and understood ‘that this would harm [him] in the future.’”
(Mejia, supra, 36 Cal.App.5th at pp. 865, 872.) There, the
contemporaneous evidence to support the defendant’s declaration
was his own life story—his relationship with the United States
and his current ties to the country—in addition to a transcript
from the preliminary hearing, which made the court question the
strength of the prosecution’s case. (Id. at pp. 872-873.)
Here, the only evidence that Sood would not have pleaded
guilty if he had known he would be deported (assuming he did not
know) was his bare-bones declaration. And in the declaration,
there are no details to substantiate his claim that it was
“paramount” for him to remain in the United States. Nothing in
the record explains when he first came to the United States or
where he was born, what his ties are to this country or his country
of birth, or any other detail to support a reasonable probability
that he would not have taken the plea deal. Although his motion
argues his entire family lived in the United States at the time of
his plea, there is no evidence of that.
Additionally, there was evidence that the prosecution’s cases
were weak against Jung and Mejia. But here, no weakness has
been identified.6 Moreover, in Jung and Mejia, the defendants
6 Sood contends the People cannot argue against a finding of
prejudice on appeal because they never made that argument in the
12
faced only marginally longer sentences than their plea deals. But
here, Sood faced life in prison and was sentenced to only 21 years
under his negotiated deal.
DISPOSITION
The trial court’s order denying Sood’s motion to vacate his
conviction is affirmed.
IBARRA, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
trial court. But this matter is reviewed independently, and “[w]e
will affirm the trial court’s ruling if it is correct on any theory of
law applicable to the case, even if for reasons different than those
given by the trial court.” (People v. Evans (2011) 200 Cal.App.4th
735, 742.)

Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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