People v. Magana CA1/2 ( 2022 )

Filed 12/29/22 P. v. Magana CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A164224
v.
DIMAS MAGANA, (San Mateo County
Super. Ct. No.
Defendant and Appellant.
SC061828D)
Dimas Magana was convicted of possession of ephedrine with intent to
manufacture methamphetamine on a plea of no contest in 2006. In 2021, he
moved to vacate the conviction pursuant to Penal Code section 1473.7,1 which
permits individuals who are no longer in custody to move to vacate a
conviction or sentence on the ground that it 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” the plea. (§ 1473.7, subd. (a)(1).) He
appeals from the denial of this motion. We affirm.
Further statutory references will be to the Penal Code except as
1
otherwise specified.
1
BACKGROUND
I.
The 2006 conviction
According to the 2006 probation report, Magana and four codefendants
were found in the “rear house” of a residence where police were executing a
search warrant for evidence related to methamphetamine manufacture. In
the same location, police found evidence related to an “ ‘extraction lab,’ a
process whereby pseudoephedrine is extracted from commercially available
cold pills containing this substance, which is later used in the manufacturing
of methamphetamine.” The police found approximately 14.63 kilograms of
pseudoephedrine pills (about 200,000), 880 grams of cocaine, 1.99 kilograms
of methamphetamine and 350 grams of marijuana. Two loaded guns were
located and $25,885 in cash was seized. A conversation between Magana and
his wife revealed that he had $35,000 in cash hidden in a suitcase at his
house, an amount the probation officer said could not be accounted for by
Magana’s salary. Magana claimed he was not involved and felt sorry for
being at his codefendant’s house. The probation officer stated, however, that
the amount of controlled substances, loaded weapons and large amount of
cash “clearly indicated [Magana] was in an environment of criminal
sophistication and professionalism” and the toxic fumes in the lab “would
have made any uninvolved person leave.” One of the police officers reported
that his throat began to burn due to chemical fumes in the lab.
Magana was charged with seven felonies: Unlawful possession of
methamphetamine for sale (Health & Saf. Code, § 11378), with two alleged
enhancements for weight (id., § 11370.4, subd. (b)(1); § 1203.073, subd. (b)(2))
and an allegation that Magana was personally armed with a firearm
(§ 120222, subd. (c)); unlawful possession of cocaine for sale (Health & Saf.
2
Code, § 11351), with alleged enhancements for weight (§ 1203.073,
subd. (b)(1)) and arming (§ 12022, subd. (c)); possession of marijuana for sale
(Health & Saf. Code, § 11359; possession of cocaine while armed with a
loaded and operable firearm (id., § 11370.1, subd. (a)); possession of
methamphetamine while armed with a loaded operable firearm (id.,
§ 11370.1, subd. (a)); possession of ephedrine or pseudoephedrine with intent
to manufacture methamphetamine (id., § 11383, subd. (c)(1));2 and unlawful
manufacture of methamphetamine (id., § 11379.6, subd, (a)), with an arming
allegation (§ 12022, subd. (c)).
Pursuant to a plea agreement, Magana pleaded no contest to the count
of possessing ephedrine with intent to manufacture methamphetamine in
exchange for a two-year prison sentence and dismissal of the other charges.
The plea form Magana signed, written in Spanish, stated, “Entiendo que si no
soy ciudadano de los Estados Unidos, la condena por el delito del que se me
acusa tendra como resultado que me deporten, y en que se me prohiba la
entrada a los Estados Unidos, y me nieguen la naturalizacion.” This
advisement translates to: “I understand that if I am not a citizen of the
2 When Magana entered his plea, Health and Safety Code
section 11383 contained provisions related to possession with intent to
manufacture methamphetamine (former Health & Saf. Code, § 11383,
subds. (a), (c), (e)–(h)) and with intent to manufacture phencyclidine (id.,
§ 11383, subds. (b), (e)). (See Stats. 2003, ch. 619, § 1.) Subsequent to
Magana’s conviction, the statutes pertaining to possession with intent to
manufacture methamphetamine and phencyclidine were reorganized.
(Stats. 2006, ch. 646, Legis. Counsel’s Dig.) Health and Safety Code
section 11383 now pertains to possession with intent to manufacture
phencyclidine while Health and Safety Code section 11383.5, added by the
2006 legislation (Stats. 2006, ch. 646, §§ 2, 3), pertains to possession with
intent to manufacture methamphetamine.
References to Health and Safety Code section 11383 in this opinion are
to the statute prior to the 2006 amendments.
3
United States, conviction of the crime with which I am charged will result in
my deportation, and in my being barred from entering the United States and
denied naturalization.” (DeepL Translate
[as of Dec. 28, 2022]; Google
Translate [as of Dec. 28, 2022] [“conviction . . . will
result in my being deported, barred from entering the United States, and
denied naturalization].)
The record does not include a reporter’s transcript for the plea hearing.
The minute order states that Magana was “advised of provisions of
[section] 1016.5 [Penal Code] (Deportation).” Section 1016.5 requires a court,
prior to accepting a plea of guilty or nolo contendere, to advise the defendant,
“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.”
Magana was subsequently sentenced to two years in prison, the lower
term for his offense.
II.
The Current Motion to Vacate
On September 16, 2021, Magana filed a motion to withdraw his plea
pursuant to section 1473.7, arguing that he entered the plea with the
understanding that it “provided no immigration consequences” when in fact
the conviction “causes serious immigration consequence[s] including
removal.” The motion emphasized the complexity of immigration law and
stated that the Ninth Circuit did not clarify that a section 11383,
subdivision (c)(1), conviction is categorically a drug trafficking aggravated
4
felony (8 U.S.C. § 1101(a)(43)(B)) until 2010, several years after Magana’s
plea.
Magana’s declaration in support of his motion stated that at the time of
his plea, he did not “meaningfully understand” that the conviction “could
become a permanent removable offense years after” his plea; he did not
receive detailed advice based on his “specific situation and background” about
the potential immigration consequences of his case; “[o]ne of the
determinative factors in the decision to accept or reject a plea offer was not
having immigration consequences”; he would not have accepted the plea if he
had known the conviction “could result in mandatory removal and denial of
benefits for [his] entire life”; and “[t]he right to remain in the United States
was more important to [him] than any additional potential jail sentence since
there is a high likelihood that [he] will be in immigration detention while
waiting for [his] removal proceedings in immigration court.” Magana
declared that he had “strong family, community ties, obligations, and
opportunities” in the United States; at the time of his plea, he and his family
“would have faced extreme hardship if [he] was forced to return to [his]
country”; at that time, he had two “U.S. citizen children and gainful
employment opportunities,” had come to the United States in the “early
1980s” after his father was killed “by criminals” in Michoacan, Mexico, which
was and remained a “very dangerous place,” and he “would not have
knowingly risked all that by pleading to a charge that had mandatory
removal for life”; he had not had further trouble with the law; and “there was
little to gain by accepting the plea offer, if [he is] forced to return to [his]
country and spend years in immigration custody.”
After a hearing at which counsel argued the motion but no additional
evidence was presented, the trial court denied the motion. The trial court
5
ruled that Magana’s factual showing was insufficient to meet his burden
under section 1473.7. The court viewed Magana’s declaration as largely
conclusory, lacking facts to support his assertion that he was not properly
advised of the immigration consequences of his plea facts regarding his
immigration status, or contemporaneous evidence supporting his assertion
that he would not have entered the plea if he had properly understood its
consequences. The court was not persuaded by Magana’s argument that his
offense only became an aggravated felony as a result of the 2010 decision he
cited, which the court read as reiterating what had been established law for
years.
DISCUSSION
I.
Principles Governing a Section 1473.7 Motion to Vacate
As the California Supreme Court has explained, “[w]hen long-standing
noncitizen residents of this country are accused of committing a crime, the
most devastating consequence may not be a prison sentence, but their
removal and exclusion from the United States. (See People v. Martinez (2013)
57 Cal.4th 555, 563 (Martinez).) Because the prospect of deportation ‘is an
integral part,’ and often even ‘the most important part,’ of a noncitizen
defendant’s calculus in responding to certain criminal charges (Padilla v.
Kentucky (2010) 559 U.S. 356, 364 (Padilla)), both the Legislature and the
courts have sought to ensure these defendants receive clear and accurate
advice about the impact of criminal convictions on their immigration status,
along with effective remedies when such advice is deficient. (E.g., Pen. Code,
§§ 1016.2 et seq., 1473.7; Jae Lee v. United States (2017) [582] U.S. __
[137 S.Ct. 1958], 198 L.Ed.2d 476 (Lee); Padilla, at p. 360, 130 S.Ct.
61473; Martinez, at p. 559; People v. Superior Court (Giron) (1974) 11 Cal.3d
793, 798.)” (People v. Vivar (2021) 11 Cal.5th 510, 516 (Vivar).)
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” on the
ground that it “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.” The moving party must
also establish that “the conviction or sentence being challenged is currently
causing or has the potential to cause removal or the denial of an application
for an immigration benefit, lawful status, or naturalization.” (Id.,
subd. (e)(1).) If the moving party establishes grounds for relief by a
preponderance of the evidence, the court “shall” grant the motion. (Ibid.)
“When ruling on a motion under paragraph (1) of subdivision (a), the 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 conviction or sentence.”
(Id., subd. (e)(4).)
“[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. (Lee, supra, [582] U.S. __ [137 S.Ct. at p. 1966].) Factors
particularly relevant to this inquiry include the defendant’s ties to the United
7
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. (See id. at p. __ [137 S.Ct. at pp. 1967-1969]; Martinez, supra,
57 Cal.4th at p. 568.)” (Vivar, supra, 11 Cal.5th at pp. 529-530.)
“[M]ovants under section 1473.7 must provide evidence corroborating
their assertions. ‘ “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. Judges should instead look to contemporaneous
evidence to substantiate a defendant’s expressed preferences.” ’
(People v. Ogunmowo (2018) 23 Cal.App.5th 67, 78, quoting [Lee, supra,]
582 U.S. ___, 137 S.Ct. 1958, 1967 [discussing how to evaluate the
‘reasonable probability’ that a defendant who would have rejected a plea deal
but for counsel’s erroneous advice about deportation in an ineffective
assistance of counsel case].)” (People v. Rodriguez (2021) 68 Cal.App.5th 301,
322 (Rodriguez); Vivar, supra, 11 Cal.5th at p. 530 [“when a defendant seeks
to withdraw a plea based on inadequate advisement of immigration
consequences, we have long required the defendant corroborate such
assertions with ‘ “objective evidence” ’ ”].)
“[A]ppeals from section 1473.7 hearings are subject to independent
review. (Vivar, supra, 11 Cal.5th 510, 525.) Under this standard, ‘ “an
appellate court exercises its independent judgment to determine whether the
facts satisfy the rule of law.” ’ (Ibid.) Independent review extends particular
deference to trial court findings ‘that are based on “ ‘the credibility of
witnesses the [superior court] heard and observed’ ” ’ but not to findings
drawn from the ‘cold record’ in the proceeding, since the trial and appellate
courts are in the same position when tasked with interpreting such
8
materials. (Id. at p. 527.)” (People v. Alatorre (2021) 70 Cal.App.5th 747, 755
(Alatorre).)
II.
Relevant Federal Immigration Principles
“The Immigration and Nationality Act (INA) renders deportable any
alien convicted of an ‘aggravated felony’ after entering the United States.
8 U.S.C. § 1227(a)(2)(A)(iii). Such an alien is also ineligible for cancellation of
removal, a form of discretionary relief allowing some deportable aliens to
remain in the country. See [8 U.S.C.] §§ 1229b(a)(3), (b)(1)(C). Accordingly,
removal is a virtual certainty for an alien found to have an aggravated felony
conviction, no matter how long he has previously resided here.” (Sessions v.
Dimaya (2018) ___ U.S. ___ [138 S.Ct. 1204, 1210-1211].)
As relevant here, the term “aggravated felony” includes “illicit
trafficking in a controlled substance (as defined in section 802 of Title 21 [of
the United States Code]), including a drug trafficking crime (as defined
in section 924(c) of Title 18 [of the United States Code]).” (8 U.S.C.
§ 1101(a)(43)(B).) Section 924(c) of title 18 [of the United States Code]
defines “drug trafficking crime” as “any felony punishable under the
Controlled Substances Act (21 U.S.C. [§] 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C. [§] 951 et seq.), or chapter 705
of title 46 [of the United States Code].”3 Possession of pseudoephedrine with
intent to manufacture methamphetamine is an aggravated felony under
federal law. (Lopez-Jacuinde v. Holder (9th Cir. 2010) 600 F.3d 1215, 1216-
1217 & fn. 3 (Lopez-Jacuinde).) Specifically, this offense is “punishable as a
3Chapter 705 of title 46 of the United States Code is entitled
“Maritime Drug Law Enforcement.”
9
federal crime under 21 U.S.C. § 841(c), possession of a listed chemical with
intent to manufacture a controlled substance.” (Id. at p. 1217, fn. 3.)4
To decide whether a state conviction “qualifies as an ‘aggravated felony’
under the INA,” federal courts “employ a ‘categorical approach’ to determine
whether the state offense is comparable to an offense listed in the INA.”
(Moncrieffe v. Holder (2013) 569 U.S. 184, 190.) “Under this approach we
look ‘not to the facts of the particular prior case,’ but instead to whether ‘the
state statute defining the crime of conviction’ categorically fits within the
‘generic’ federal definition of a corresponding aggravated felony. (Ibid.) “[A]
state offense is a categorical match with a generic federal offense only if a
conviction of the state offense ‘ “necessarily” involved . . . facts equating to
[the] generic [federal offense].’ ” (Ibid., quoting Shepard v. U.S. (2005)
544 U.S. 13, 24 (plur. opn.).) “ ‘The prior conviction qualifies as [the generic
offense] only if the statute's elements are the same as, or narrower than,
those of the generic offense.’ ” (U.S. v. Alvarado-Pineda (9th Cir. 2014)
774 F.3d 1198, 1202, quoting Descamps v. U.S. (2013) 570 U.S. 254, 257.)
III.
Analysis
A. Magana Failed to Demonstrate an Error Prejudicing His
Ability to Understand the Immigration Consequences of His
Plea.
1. Magana’s Offense Was an Aggravated Felony.
Magana’s main argument on appeal is that the trial court ignored his
inability to understand that his conviction was an aggravated felony under
federal law. He contends his inability to understand was corroborated by the
4 Both ephedrine and pseudoephedrine are “listed chemical[s]”
(21 U.S.C. §§ 802(33), 802(34)(C), 802(34)(K)), and methamphetamine is a
controlled substance (21 U.S.C. §§ 802(6), 812(c), Schedule II(c) & Schedule
III(a)(3)).
10
fact that federal courts “did not address the issues” until after his plea, when
the Ninth Circuit, in 2010, “clarified” that a conviction under section Health
and Safety Code section 11383, subdivision (c)(1), is categorically a drug
trafficking aggravated felony under title 8 of the United States Code
(8 U.S.C.) section 1101(a)(43)(B). (Lopez-Jacuinde, supra, 600 F.3d 1215.) At
the time of his plea in 2006, Magana maintains, not every California drug
offense was a categorical match for a federal drug trafficking crime because
California statutes criminalized a broader range of activity and greater
variety of substances than did federal law, and no published decision
indicated that a conviction under Health and Safety Code section 11383,
subdivision (c)(1), was a drug trafficking aggravated felony.
The defendant in Lopez-Jacuinde, like Magana, was convicted of
violating section 11383, subdivision (c)(1), in that case by possession of
pseudoephedrine with intent to manufacture methamphetamine. (Lopez-
Jacuinde, supra, 600 F.3d at p. 1216.) The Board of Immigration Appeals
held the conviction was a drug trafficking crime constituting an aggravated
felony under 8 U.S.C. section 1101(a)(43)(B). On appeal, the defendant
argued the conviction was not a drug trafficking aggravated felony because
the state offense was broader than the corresponding federal one, positing
that the federal offense required use of a firearm and possession of a
minimum amount of pseudoephedrine, neither of which were required for the
state offense. (Lopez-Jacuinde, at p. 1216.)
As indicated above, 8 U.S.C. section 1101(a)(43)(B), defines as an
aggravated felony “illicit trafficking in a controlled substance (as defined
in section 802 of Title 21 [of the United States Code]), including a drug
trafficking crime (as defined in section 924(c) of Title 18 [of the United States
Code]).” Lopez-Jacuinde explained that the Ninth Circuit had interpreted
11
this provision as “providing two analytic routes through which a state drug
felony may be classified as an aggravated felony: (1) if the state crime
contains a ‘trafficking element,’ it is an aggravated felony under the ‘illicit
trafficking in a controlled substance’ prong of § 1101(a)(43)(B); or (2) if the
state offense would be punishable as a felony under federal drug laws, it is an
aggravated felony under the ‘including a drug trafficking crime’ prong of that
section.” (Lopez-Jacuinde, supra, 600 F.3d at p. 1217.) With regard to the
second prong, the defendant in Lopez-Jacuinde argued that “drug trafficking
crime” as defined in the federal statutes included use of a firearm as an
element. (Id. at pp. 1217-1218.) Disagreeing with the defendant’s reading of
the statutory text, the Ninth Circuit held that “use of a firearm is not a
necessary element of a ‘drug trafficking crime’ for the purpose of determining
whether an alien has been convicted of an ‘aggravated felony.’ ” (Id. at
p. 1218.) The court similarly rejected the defendant’s argument that the
federal definition required possession of a minimum amount of
pseudoephedrine, an argument the court described as attempting “to
incorporate federal regulatory provisions requiring that retail distributors
keep records of high-quantity pseudoephedrine transactions into separate
federal provisions criminalizing possession of pseudoephedrine with intent to
manufacture methamphetamine.” (Id. at pp. 1218-1219.)
Like the trial court, we do not read Lopez-Jacuinde as having changed
the law after Magana’s plea to make possession of ephedrine with intent to
manufacture methamphetamine an aggravated felony when it previously had
not been considered one. Rather, the Ninth Circuit rejected arguments that
the federal offense included elements beyond those required by the statutory
definitions. The court did not suggest there was any question whether the
statutory elements of the California offense of possession of pseudoephedrine
12
with intent to manufacture methamphetamine in violation of Health and
Safety Code section 11383, subdivision (c)(1), were broader than those of the
federal drug trafficking aggravated felony as defined in 8 U.S.C.
section 1101(a)(43)(B), section 924(c) of title 18 of the United State Code, and
section 841(c) of title 21 of the United States Code. Nor does Magana suggest
how that might be the case. Lopez-Jacuinde provides no reason to think
possession of ephedrine with intent to manufacture methamphetamine was
not an aggravated offense under the INA in 2006. Then, as now, the
statutory language made clear that possession of ephedrine with intent to
manufacture methamphetamine was a felony under the Controlled
Substances Act and, therefore, an aggravated felony.5
5 In 2006, as now, “aggravated felony” included “a drug trafficking
crime (as defined in section 924(c) of Title 18 [of the United States Code])”
(8 U.S.C. § 1101(a)(43)(B)); a “drug trafficking crime” under section 924(c)(2)
of title 18 [of the United States Code] included “any felony punishable under
the Controlled Substances Act (21 U.S.C. [§] 801 et seq.)”; the Controlled
Substances Act made it unlawful to “knowingly or intentionally . . . possess[]
a listed chemical with intent to manufacture a controlled substance”
(21 U.S.C. § 841(c)(1)); ephedrine was a “listed chemical” (21 U.S.C.
§§ 802(33), 802(34(C)); and methamphetamine was a controlled substance
(21 U.S.C. §§ 802(6), 812(c), Schedule II(c) & Schedule III(a)(3)).
That ephedrine is not itself a controlled substance, as Magana’s counsel
emphasized at oral argument (although not in his briefs), is immaterial:
Possession of ephedrine with intent to manufacture methamphetamine is an
aggravated felony as a drug trafficking crime because it is a felony
punishable under the Controlled Substances Act regardless of whether it
would also be an aggravated felony under the “ ‘illicit trafficking in a
controlled substance’ prong” of the definition. (Daas v. Holder (9th Cir. 2010)
620 F.3d 1050, 1054, quoting Lopez-Jacuinde, supra, 600 F.3d at p. 1217.)
13
2. Magana Did Not Prove He Was Not Advised of the
Immigration Consequences of His Plea.
Magana maintains the trial court rejected his assertion that he was not
advised of the adverse immigration consequences of his plea because he
signed the plea form stating he would have immigration consequences. He
argues that although the plea form stated his conviction “will” have
immigration consequences, nothing in the record demonstrates he
meaningfully understood and knowingly accepted the mandatory
immigration consequences of his plea and “there was no mention during the
plea colloquy of immigration consequences and no representations by defense
counsel that they had provided such advisements.” There are a number of
problems with this argument.
First, the record does not support Magana’s description of the plea
hearing. The record on appeal does not include a transcript of the 2006 plea
hearing; the only record of what was said at the hearing is the court’s minute
order. The minute order states that Magana was “advised of provisions of
[section] 1016.5 [Penal Code] (deportation),” contradicting Magana’s
argument that there was “no mention . . . of immigration consequences” at
the plea hearing. Absent a reporter’s transcript of the hearing or declaration
from the attorney who represented Magana at the time, we have no evidence
of what counsel represented at the hearing regarding advisements to Magana
about immigration consequences. Counsel did, however, sign the statement
on the plea form saying he had “personally read and explained the contents of
the above declaration to the defendant.” The “above declaration,” of course,
includes the statement that the conviction “will” result in Magana being
deported, barred from entering the United States and denied naturalization.
Magana “has the burden of providing an adequate record” and “[f]ailure to
provide an adequate record on an issue requires that the issue be resolved
14
against [him].” (Hernandez v. California Hospital Medical Center (2000)
78 Cal.App.4th 498, 502; see Maria P. v. Riles (1987) 43 Cal.3d 1281,
1295.)
Second, Magana’s emphasis on the advisement in the plea form is
misplaced. Magana argues the trial court erred in concluding the “generic
advisement regarding potential immigration consequences of the plea
satisfied section 1473.7.” He relies on cases holding that “the words ‘may
have’ in a section 1016.5 immigration advisement are not an adequate
immigration advisement for defendants charged with serious controlled
substance offenses. (People v. Patterson [(2017)] 2 Cal.5th [885,] 889, 895.)
Defendants must be advised that they will be deported, excluded, and denied
naturalization as a mandatory consequence of the conviction. (Ibid.) ‘A
defendant entering a guilty plea may be aware that some criminal
convictions may have immigration consequences as a general matter, and yet
be unaware that a conviction for a specific charged offense will render the
defendant subject to mandatory removal.’ (Ibid.)” (People v. Ruiz (2020)
49 Cal.App.5th 1061, 1065.) These principles are of little use to Magana
because, as he recognizes in other parts of his briefs, his plea form stated that
his conviction “will” result in deportation, exclusion and denial of
naturalization, not that these consequences “may” result.6
Third, the record does not support Magana’s assertion that the trial
court rejected his claim of lack of advice because he signed the plea form. The
trial court noted at the outset of the hearing that the People’s opposition
incorrectly stated Magana had been advised his plea “may have immigration
6 Magana’s briefs are completely inconsistent in describing the
advisement on the plea form, stating both that the plea form indicated “there
will be immigration consequences” and that he was advised only that the
adverse immigration consequences “may” result.
15
consequences” when in fact the plea form stated the plea “would have
consequences of deportation, exclusion from admission to the United States,
and denial of naturalization.” (Italics added.) But the court made no
reference to this point in its ruling; it denied the motion, the court stated,
because it found the record “deficient in its facts to support granting the
relief” Magana sought.
The court addressed several specific deficiencies in explaining its
ruling, emphasizing that Magana’s declaration mainly consisted of conclusory
statements with “very little facts” in support. The court first discussed the
absence of evidence that counsel failed to advise Magana of the immigration
consequences of his plea, which the court regarded as the major factor
addressed in Vivar and Ruiz. The court also disagreed with Magana’s claim
that Lopez-Jacuinde changed immigration law and therefore indicated
possession of ephedrine with intent to manufacture methamphetamine was
not an aggravated felony at the time of Magana’s plea. It found Magana’s
declaration insufficient to establish that his conviction was causing, or had
the potential to cause, removal or other adverse immigration consequences
(§ 1473.7, subd. (e),7 and it found there was no contemporaneous evidence to
7 The trial court found there was no evidence, in Magana’s declaration
or otherwise, of his immigration status at the time of the plea or currently,
and saw Magana as asking the court to “infer things because he’s filed a
motion under this provision.” Although none of Magana’s arguments on
appeal directly address this aspect of the trial court’s ruling, he suggests the
court ignored “uncontradicted evidence” in the record showing he is a
noncitizen who moved to the United States in the 1980s and at the time of his
plea was in the process of obtaining his permanent resident visa. He points
to the probation report as stating these facts.
Although the probation report is part of the record on appeal, and thus
available to us in reviewing the trial court’s order, it appears that Magana
did not present the probation report to the trial court in connection with his
16
demonstrate Magana would not have entered the plea if he had been properly
advised of its immigration consequences. The advisement on the plea form
simply does not appear to have played a significant role in the trial court’s
analysis.
The trial court focused on the absence of evidence that Magana was
misadvised despite its recognition that Magana’s motion did not depend on
proof he received ineffective assistance of counsel. (§ 1473.7, subd. (a)(1).)
The advice given (or not given) by counsel is relevant even though, as
Magana emphasizes, “[p]rejudicial error” for purposes of section 1473.7 may
result from “the moving party’s own mistake of law or inability to understand
the potential adverse immigration consequences of the plea.” (People v. Jung
(2020) 59 Cal.App.5th 842, 856, overruled on other grounds in Vivar, supra,
11 Cal.5th at p. 526, fn. 4; People v. Mejia (2019) 36 Cal.App.5th 859, 871;
People v. Camacho (2019) 32 Cal.App.5th 998, 1009.) A defendant’s assertion
of his or her error or lack of understanding must be corroborated by
contemporaneous evidence (Vivar, at p. 530; Rodriguez, supra,
68 Cal.App.5th at p. 322), and evidence that counsel did not fully explain the
immigration consequences of a plea would corroborate a defendant’s claim
that he or she was not advised and therefore did not understand the
consequences.
The trial court rejected Magana’s assertion that he was not advised of
the adverse immigration consequences of his plea because it found no
motion: The court stated that it had before it only Magana’s moving papers
and declaration (which attached copies of two children’s birth certificates and
Magana’s criminal record) and the People’s opposition (which attached the
2006 plea form and minute order from the plea hearing). The trial court
could not “ignore” evidence that was not presented to it.
In any event, our analysis of this case does not turn on the trial court’s
finding that Magana failed to establish his lack of citizenship.
17
evidence to corroborate the assertion. Magana declared that he “did not
meaningfully understand that this conviction could become a permanent
removable offense years after my plea” and that he “did not receive detailed,
affirmative and meaningful advice based on [his] specific situation and
background regarding the potential immigration consequences of [his]
criminal case.” His declaration—the only evidence he submitted in support of
the motion—provided no information about the circumstances and content of
his discussions with counsel—such as what he told or asked counsel, what
counsel said or did not say, how much time counsel spent with him—or
otherwise elaborate upon his conclusory statement. We agree with the trial
court that the “conclusory and generic” statements in Magana’s declaration
are insufficient to establish that he was not advised of the immigration
consequences of his plea.
In Vivar, supra, 11 Cal.5th 510, for example, the defendant rejected a
potentially immigration-neutral plea offer because he mistakenly believed it
could not be immigration neutral, and accepted an offer to plead to an offense
he mistakenly believed would avoid deportation; his attorney did not correct
his erroneous assumptions and did not advise him on the actual immigration
consequences of the plea. (Id. at pp. 518-519.) Detailed facts concerning the
defendant’s understanding, the plea offers and counsel’s advice were
described by the defendant and, while his plea attorney declined to provide a
declaration, her recollection was presented to the court in unsworn emails
and handwritten notes from the plea negotiations. (Ibid.) In Rodriguez,
supra, 68 Cal.App.5th 301, the defendant’s declaration described the
circumstances under which she entered her plea and stated that she was
never advised the offense to which she pleaded no contest was an aggravated
felony and would have the consequence of permanently separating her from
18
her family. (Id. at pp. 316-317.) In addition, the supervising attorney for the
public defender’s office at the time of the plea declared that the defendant’s
attorney’s extensive file notes gave no indication the attorney ever examined
the immigration consequences of the plea or advised the defendant about
them. (Id. at p. 317.) The declaration further stated that at that time—five
years before Padilla, supra, 559 U.S. 356, held that an attorney’s failure to
advise a client of the potential immigration consequences of pleading guilty to
a criminal charge constitutes ineffective assistance of counsel—“ ‘it was not
the common practice of defense counsel to research or advise clients
regarding the specific immigration consequences of a particular plea.’ ”
(Rodriguez, at p. 317.)
The present record reflects no such corroboration of Magana’s
statement that he was not properly advised. Magana signed the plea form
stating he understood his plea “will result in my deportation, and in my being
barred from entering the United States and denied naturalization,” and he
“presented no independent evidence that he was told anything other than
that he would be deported.” (People v. Abdelsalam (2022) 73 Cal.App.5th
654, 664.) His conclusory assertion that he did not “meaningfully
understand” his conviction “could become a permanent removable offense
years after [his] plea and become disastrous from an immigration law
perspective” does not demonstrate, as section 1473.7 requires, that his
“ ‘ability to meaningfully understand, defend against, or knowingly accept the
actual or potential adverse immigration consequences of a plea’ was damaged
by an error. (Italics added.)” (Abdelsalam, at p. 664.)
Finally, while a defendant’s own subjective error can qualify for relief
under section 1473.7, there must be “evidence show[ing] he or she
misunderstood the immigration consequences of a plea deal.” (Alatorre,
19
supra, 70 Cal.App.5th at p. 769.) Alatorre provides an example. (Id. at
p. 770.) The Alatorre court explained, “there can be little doubt in this case
that Alatorre never appreciated his plea and subsequent conviction made him
automatically deportable” because “it was Alatorre’s misguided efforts to
become a naturalized citizen within three years of his conviction that brought
him to the attention of immigration authorities and triggered his own
deportation. It goes without saying that someone who understood his
criminal conviction made him automatically deportable would not voluntarily
contact immigration authorities and advise them of his presence in the
country. This alone demonstrates it is more likely than not that Alatorre
failed to ‘meaningfully understand’ the consequences of his plea.” (Ibid.)
Magana argues that the record does not demonstrate he meaningfully
understood and knowingly accepted the mandatory immigration
consequences of his plea, but this misunderstands his burden: Magana was
required to show he did not understand and knowingly accept the
consequences. “Defendant was required . . . to show that one or more” errors
“were prejudicial and damaged his ‘ability to meaningfully understand,
defend against, or knowingly accept the actual or potential adverse
immigration consequences of [his] plea . . . .’ (§ 1473.7, subd. (a)(1).)” (People
v. Camacho, supra, 32 Cal.App.5th at p. 1009.) As we have said, a
defendant’s uncorroborated assertions are not sufficient.
B. Magana Failed to Demonstrate Prejudice.
Having concluded that Magana failed to meet his burden of
demonstrating an error that damaged his ability to meaningfully understand,
defend against or knowingly accept the adverse immigration consequences of
his plea, we do not necessarily need to address the prejudice prong of the
20
section 1473.7 analysis. It is worth observing, however, that Magana failed
to substantiate his claims in this respect as well.
Magana argues he demonstrated a reasonable probability he would not
have entered his plea if he had understood it would subject him to permanent
deportation by his declaration stating he had strong family and community
ties to the United States and he and his family would have faced “extreme
hardship” if forced to return to Mexico. As he correctly observes, a number of
cases discuss evidence of a defendant’s strong ties to the United States as
corroborating post hoc assertions that the defendant would not have entered
the plea if he or she had understood its immigration consequences. (E.g.,
Alatorre, supra, 70 Cal.App.5th at pp. 752, 771 [defendant came to United
States as preschooler; wife and children were United States citizens; parents,
siblings and large extended family lived here; after deportation, defendant
remained close to border to see children on weekends]; Rodriguez, supra,
68 Cal.App.5th at p. 316 [defendant had been in United States since she was
one year old; mother was citizen, father was lawful resident pending
naturalization, sisters lived here; defendant was in committed relationship,
had two children and was pregnant with third]; Vivar, supra, 11 Cal.5th at
pp. 516-517, 530 [defendant had been in the United States for 40 years, since
age six; mother, wife, children and grandchildren were all citizens; at the
time he was deported, wife was undergoing radiation treatment for medical
condition and son was about to be deployed to the Middle East with United
States Air Force].)
Here, Magana declared: “I have strong family, community ties,
obligations, and opportunities in the United States and at the time of my
plea, me and my family would have faced extreme hardship if I was forced to
return to my country”; “I had two U .S. citizen children and gainful
21
employment opportunities” at the time of the plea;8 “I came to the United
States in the early 1980s after my father was killed by criminals in
Michoacan, Mexico,” which “was and is still a very dangerous place,” and “I
would not have knowingly risked all that by pleading to a charge that had
mandatory removal for life.” Magana provided contemporaneous evidence
that he had two children born in the United States by attaching the birth
certificates to his declaration, and the trial court accepted that having two
United States citizen children was “significant in [Magana’s] life at the time
that he entered this plea.” Beyond that, however, his statements about his
ties to the United States were, as the trial court said, generic and
conclusory.9
The same is true of the assertions in Magana’s declaration about the
significance of immigration consequences to him at the time he entered his
plea. Magana did not elaborate on or provide evidence supporting his
statements that “[o]ne of the determinative factors in the decision to accept or
reject a plea offer was not having immigration consequences; that “I would
not have accepted the plea if I knew that this conviction could result in
mandatory removal and denial of benefits for my entire life”; that “[t]he right
to remain in the United States was more important to me than any
additional potential jail sentence since there is a high likelihood I will be in
8 At the hearing, when the trial court stated that Magana had not
presented evidence—even in his declaration—of the “gainful employment” his
attorney cited in discussing his ties to the United States, counsel conceded
the declaration did not address Magana’s employment and suggested it was
“reasonable to assume” he had been working for many years.
9 Magana provided independent evidence to support his assertion that
he had not committed further offenses by submitting a copy of his criminal
record, but this point was not relevant to his understanding of the
consequences of his plea at the time he entered it.
22
immigration detention while waiting for my removal proceedings in
immigration court; and that “[t]here was little to gain by accepting the plea
offer, if I’m forced to return to my country and spend years in immigration
custody.” By contrast, for example, the defendant in Lee, supra, 582 U.S. __[137 S.Ct. at pages 1967-1968], repeatedly asked his attorney whether there
was any risk of deportation; both he and the attorney testified that Lee would
have gone to trial if he had known about the deportation consequences of his
plea; and at the plea hearing, when the judge warned that the conviction
could result in deportation and asked if this affected Lee’s decision whether
to plead guilty, Lee said “yes” and entered the plea only after his attorney
assured him the judge’s statement was “a ‘standard warning.’” Magana
provided no such corroborating evidence.
Nor did Magana address what he would have done in lieu of accepting
the plea offer. He said nothing about any potential defense he would have
asserted if he chosen to go to trial. Presumably, the strength or weakness of
available defenses would have been a consideration in deciding whether to
plead no contest.10 According to the probation report, Magana claimed he
10 “A defendant without any viable defense . . . will rarely be able to
show prejudice from accepting a guilty plea that offers him a better resolution
than would be likely after trial” because the defendant “will be highly likely
to lose at trial” and therefore “highly likely” to “accept a plea.” (Lee, supra,
582 U.S. __ [137 S.Ct. at p. 1966].) Lee explained that such a defendant
might rationally reject a plea offer if “the respective consequences of a
conviction after trial and by plea . . . are, from the defendant’s perspective,
similarly dire”; if avoiding deportation is the critical factor and the plea will
certainly lead to deportation, a trial that will “almost certainly” have the
same result may seem preferable. (Id. at pp. 1966, 1968-1969.) Unlike the
defendant in Lee, as we have said, Magana did not present any evidence to
corroborate his after-the-fact statements about the significance he attached
to immigration consequences at the time of his plea.
23
was “not involved at all” and felt “sorry for being at [codefendant’s] house.”
His defense at trial, however, surely would have been seriously undermined
by the evidence that he was present in an “ ‘extraction lab,’ ” with large
quantities of methamphetamine and other controlled substances, loaded
firearms, stacks of cash and chemical fumes that caused a police officer’s
throat to burn and, in the words of the probation officer, “would have made
any uninvolved person leave,” and that he had $35,000 in cash hidden at his
home that “his salary would not account for.”
If convicted at trial, Magana would have faced a potential sentence
considerably longer than the two-year low term he received under the plea
agreement. The middle and upper terms for possession of ephedrine with
intent to manufacture methamphetamine, the charge to which Magana
pleaded no contest, are (and were in 2006) four and six years. (Health & Saf.
Code, § 11383; Stats. 2003, ch. 619, § 1.) Three of the counts dismissed
pursuant to the plea agreement alleged that Magana was armed with a
firearm; if found true, this enhancement would add 16 months, two years or
three years to the sentence for the substantive offenses,11 which themselves
carried sentences ranging from a low of three years for possession for sale of
cocaine to a high of seven years for manufacture of methamphetamine.
Sentences for the other dismissed counts ranged from 16 months (low term
for possession of marijuana for sale) to four years (upper term for possession
of cocaine or methamphetamine while armed with a loaded and operable
11 In 2006, section 12022 provided for punishment by “imprisonment in
the state prison” (see Stats. 2010, ch. 711, § 5), which section 18 defined as a
sentence of 16 months, two years or three years. (See Stats. 2011, ch. 15,
§ 230.)
24
firearm).12 And conviction on any of four counts in addition to the one to
which Magana pleaded would have subjected Magana to the same
immigration consequences as his plea, as the three possession for sale
offenses, as well as the count of manufacture of methamphetamine, are also
aggravated felonies under the 8 U.S.C. section 1101(43)(B).13
12 Manufacture of methamphetamine is and was in 2006 punishable by
imprisonment for three, five or seven years (Health & Saf. Code, § 11379.6,
subd. (a); see Stats. 2003, ch. 620, § 1); the firearm enhancement would add
three, four or five years (§ 12022, subd. (c); see Stats. 2010, ch. 711, § 5), for a
maximum of 12 years and minimum of 6 years.
Possession of methamphetamine for sale is (and was in 2006)
punishable by a term of 16 months, two years or three years (Health & Saf.
Code, § 11378; § 1170, subd. (h)(1)); Stats. 2001, ch. 841, § 6), plus three years
for the weight enhancement (Health & Saf. Code, § 11370.4, subd. (b)(1);
Stats. 1998, ch. 425, § 1) and three, four or five years for the firearm
enhancement (§ 12022, subd. (c); see Stats. 2010, ch.711, § 5), for a maximum
of 11 years and minimum of 7 years and 4 months.
Possession of cocaine for sale is and was punishable by imprisonment
for two, three or four years (Health & Saf. Code, § 11351; Stats. 2000, ch. 8,
§ 4), plus three, four or five years for the firearm enhancement (§ 12022,
subd. (c); see Stats. 2010, ch.711, § 5), for a maximum of 9 years and
minimum of 5 years.
Possession of cocaine or methamphetamine while armed with a loaded
and operable firearm is and was punishable by a term of two, three or four
years. (Health & Saf. Code, § 11370.1, subd. (a); see Stats. 1996, ch. 1132,
§ 1.)
Possession of marijuana for sale, in 2006, was punishable by
imprisonment for 16 months, two years or three years. (Former Health &
Saf. Code, § 11359 [“imprisonment in the state prison”]; Stats. 1976, ch. 1139,
§ 73; § 18; see Stats. 2011, ch. 15, § 230.)
13 Possession of methamphetamine for sale under Health and Safety
Code section 11378 is an aggravated felony (U.S. v. Rodriguez-Gamboa (9th
Cir.) 972 F.3d 1148, 1150; U.S. v. Verduzco-Rangel (9th Cir. 2018) 884 F.3d
918, 923), as is possession for sale of cocaine under Health and Safety Code
section 11351 (Robles Lopez v. Sessions (9th Cir. 2018) 901 F.3d 1071, 1075
25
As to the possibility of a plea bargain less detrimental from an
immigration standpoint, Magana’s declaration says nothing about the plea
negotiations or any other basis for concluding he had “reason to believe an
immigration-neutral disposition was possible.” (Vivar, supra, 11 Cal.5th at
pp. 529-530.) As five of the seven charged offenses were drug-trafficking
aggravated felonies under the INA, an immigration neutral disposition would
have been possible only if the prosecutor agreed to dismiss all these charges
and allow Magana to plead to an offense without an element relating to sale
or manufacture of a controlled substance. (See Rendon v. Mukasey, supra,
520 F.3d at p. 976 [possession of controlled substance with intent to sell is an
aggravated felony because it contains a trafficking element].) Magana’s
declaration offers no reason to think the prosecutor would have accepted a
plea agreement permitting him to avoid all offenses implicating sale or
manufacture of a controlled substance when the circumstances of the offenses
so clearly involved such conduct.
Magana acknowledges the requirement that “movants under
section 1473.7 must provide evidence corroborating their assertions,” but he
does not appear to appreciate how little he offered as “ ‘contemporaneous
evidence to substantiate [his] expressed preferences.’ ” (People v. Ogunmowo,
supra, 23 Cal.App.5th at p. 78, quoting Lee, supra, 582 U.S. __ [137 S.Ct. at
p. 1967].) His conclusory and mostly uncorroborated declaration is
[cocaine salt]; see Rendon v. Mukasey (9th Cir. 2008) 520 F.3d 967, 976
[possession of controlled substance with intent to sell is an aggravated felony
because it contains a trafficking element]), possession for sale of marijuana
under Health and Safety Code section 11359 (Roman-Suaste v. Holder (9th
Cir. 2014) 766 F.3d 1035, 1037), and manufacturing methamphetamine
under section 11379.6 (Boone v. Ashcroft (9th Cir. 2004) 113 Fed. Appx. 749,
750).
26
insufficient to show a reasonable probability that he would not have entered
his plea if he had understood it would make him subject to mandatory
deportation and permanent exclusion.14
DISPOSITION
The order denying Magana’s section 1473.7 motion is affirmed.
14 Magana’s opening brief includes an argument that his unawareness
of the immigration consequences of his plea supports vacating the plea under
section 1018. Under section 1018, “[a]t any time before judgment, or within
six months after an order granting probation if entry of judgment is
suspended, a trial court may permit a defendant to withdraw a guilty plea for
‘good cause shown.’ (§ 1018.)” (Patterson, supra, 2 Cal.5th at p. 894.)
Magana does not explain how his claim of mistake and failure to
understand, insufficiently corroborated for purposes of section 1473.7, would
be sufficient for purposes of section 1018. His assertion that his ability to
meaningfully understand and accept the immigration consequences of his
plea “cannot be presumed based on a standard advisement that merely
described the possibility of removal as something that may happen as a
consequence of the plea” ignores the fact that he was advised the plea “will”
have these consequences.
In any event, Magana made clear in the trial court that his motion was
not based on section 1018, telling the court “this is not a motion under
[section] 1018.” We will not address this argument further.
27
STEWART, P.J.
We concur.
RICHMAN, J.
VAN AKEN, J. *
People v. Magana (A164224)
* Judge of the San Francisco Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
28