People v. Tagintsev CA3 ( 2022 )

Filed 8/11/22 P. v. Tagintsev CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C094590
Plaintiff and Respondent, (Super. Ct. No. 12F03145)
v.
ALEXANDER TAGINTSEV,
Defendant and Appellant.
Nearly a decade ago defendant Alexander Tagintsev pleaded no contest to
engaging in lewd and lascivious acts with a child under the age of 14. He was afterward
deported to Kazakhstan, his country of citizenship, based on this conviction. He now
seeks to set aside his conviction using Penal Code1 section 1473.7, a statute that allows a
person out of custody to vacate a conviction “due to prejudicial error damaging the
1 Undesignated statutory references are to the Penal Code.
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moving party’s ability to meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of a conviction or sentence.”
(§ 1473.7, subd. (a)(1).)
According to defendant, he is entitled to relief under this statute because his
counsel failed to inform him that he would be deported if he were convicted and, had she
done so, he would not have pleaded no contest. We reject his claim. Like the trial court,
we conclude that defendant failed to meet his burden to show his entitlement to relief
under this statute. We thus affirm the trial court’s order denying relief.
BACKGROUND
In 2012, the Sacramento County District Attorney charged defendant, then a
noncitizen resident of the United States, with one count of lewd and lascivious acts with a
child under the age of 14 (§ 288, subd. (a)) and two counts of annoying or molesting a
child under the age of 18 (§ 647.6, subd. (a)(1)). Defendant later admitted a factual basis
existed for the section 288 count, acknowledging that the prosecution’s evidence would
show that, in 2010, he “touch[ed] the breasts of . . . a child of the age of 13 years old”
“with the intent to sexually gratify himself.”
Following the charges, defendant’s attorney attempted to negotiate a plea that
would avoid adverse immigration consequences and limit defendant’s time in custody.
To that end, after the prosecution offered “a bullet,” that is, a year, on the section 288
charge, defendant’s counsel countered with three alternatives, e-mailing: “1) Would you
giv[e] 364 days instead of 365? [¶] 2) Is there any way that you would offer a [section]
32 [charge] instead? [¶] 3) If no to #2, would you consider offering a misdemeanor
instead?” But the prosecution responded that “the offer remains a bullet on the [section]
288 [subdivision] (a) [charge]. We [will] not be offering a misd[emeanor] given
defendant’s repeated victimizing conduct. There are certainly cases where we’d consider
less time or a different charge. This one isn’t it.” Defendant’s counsel persisted: “How
about 364[?] It makes no difference to you really but could make a difference to him and
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his family.” Defendant’s counsel, in presenting this counter, appeared to believe that a
sentence less than 365 days would avoid adverse immigration consequences. But the
prosecution stood firm, stating, “[W]e can’t tailor a sentence around a person’s potential
immigration consequences. He could just as easily been offered 3 years based on his
conduct, but we had hoped to encourage an early resolution by offering a promise.”
Shortly after these negotiations, defendant accepted the prosecution’s offer. He
pleaded no contest to the section 288 charge in exchange for 365 days in jail and the
dismissal of the remaining charges. Before accepting defendant’s plea, the trial court
asked defense counsel whether she had “discussed with Mr. Tagintsev . . . the direct
consequences stemming from his plea.” She said she had. The court further asked
defendant whether he “underst[oo]d that if you’re not a U.S. citizen of the United States,
your plea today could result in you being deported from the U.S., excluded from
admission to the U.S., or denied citizenship or naturalization.” Defendant said he did.
After accepting defendant’s plea, the court placed him on formal probation for five years
and ordered him to serve 365 days in jail.
Based on this conviction, federal authorities afterward initiated proceedings to
deport defendant to Kazakhstan, his country of citizenship, and, in 2018, he was
deported. Over two years after being deported, and over seven years after being
sentenced, defendant moved to vacate his conviction under section 1473.7. He argued
that vacatur was appropriate because, “[b]y his recollection, his attorney never talked to
him about the possible immigration consequences of a plea but focused on getting a deal
with probation and avoiding a possible eight year prison sentence.” He added that his
attorney should have advised him to plead to a crime without immigration consequences.
Defendant attached his own declaration to support his motion. In it, he stated that his
counsel never said “what might happen to me with immigration” and never said that “if I
took the plea deal I would be deported.” He added that “[w]hen we went over the plea
deal, I do not remember my public defender saying anything about immigration.”
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Defendant also discussed his interest in remaining in the United States. He noted that he
came here in 1998 as a refugee and, because he has four children in the Sacramento area,
it is “important that I stay in the United States so that I could be with and support my
children.” He further noted that “[g]etting a good deal in the criminal court was
important. However, what was just as important was making sure that I would stay with
my family.”
The trial court, agreeing with the prosecution’s opposition to defendant’s motion,
denied the motion. It appeared to question defendant’s credibility, stating that his
declaration was “after the fact and there are certain motives to make certain statements in
the declaration,” and it found his declaration failed to show “he was ever misadvised
about immigration consequences”; it instead only showed he “d[id]n’t recall the issue
coming up.” The court also questioned defendant’s suggestion that his counsel could
have reached an immigration-safe settlement with the prosecution. “[I]n a case like this,”
the court stated, “it doesn’t sound like the People would be willing to do that. They
weren’t even willing to shave one day off the sentence.” For these reasons, the court
denied defendant’s motion.
Defendant timely appealed. (See § 1473.7, subd. (f) [“An order granting or
denying the motion is appealable under subdivision (b) of Section 1237 as an order after
judgment affecting the substantial rights of a party.”].)
DISCUSSION
Section 1473.7, as relevant here, allows persons who are no longer in criminal
custody to withdraw a plea with adverse immigration consequences if they can show they
would not have entered the plea had they been properly advised in advance of these
consequences. In particular, it states: “A person who is no longer in criminal custody
may file a motion to vacate a conviction or sentence” if “[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
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adverse immigration consequences of a conviction or sentence.” (§ 1473.7, subd. (a).) If
the moving party establishes the requisite grounds for relief by a preponderance of the
evidence, “the court shall allow the moving party to withdraw the plea.” (Id.,
subd. (e)(3), (1).)
According to defendant, the trial court here wrongly denied his motion under this
statute because “his counsel either did not inform him that he would be deported because
of his plea or . . . misinformed [him] as to the immigration consequence of his plea.”
Defendant adds that his counsel’s representation was not only inadequate; it was also
prejudicial because, absent his counsel’s inadequate representation, he would not have
entered the plea in this case.
We apply an independent standard of review in reviewing defendant’s challenge to
the trial court’s decision. (See People v. Vivar (2021) 11 Cal.5th 510, 527.) Under this
standard, we exercise our “ ‘independent judgment to determine whether the facts satisfy
the rule of law.’ [Citation.]” (Ibid.) This standard requires us to “give particular
deference to factual findings based on the trial court’s personal observations of
witnesses.” (Id. at pp. 527-528.) But “[w]here, as here, 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. [Citation.] Ultimately it is
for the appellate court to decide, based on its independent judgment, whether the facts
establish prejudice under section 1473.7.” (Id. at p. 528, fn. omitted.)
Applying this standard here, we conclude that defendant’s challenge falls short
because he has not persuasively shown that his counsel failed to inform him of the
potential immigration consequences of his plea. As his counsel’s e-mails with the
prosecution show, the potential immigration consequences of a conviction were central to
the plea negotiations. During the negotiations, the prosecution offered to settle for 365
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days and a plea to a section 288, subdivision (a) charge. Defendant’s counsel, in turn,
countered with three alternatives that she appeared to believe would avoid adverse
immigration consequences: First, “364 days instead of 365”; second, “offer a [section]
32 [charge] instead”; or third, “offer[ ] a misdemeanor instead.” But the prosecution
stood firm: “[T]he offer remains a bullet” (i.e., a year) “on the [section] 288
[subdivision] (a) [charge].” Defendant’s counsel tried once more, writing, “How about
364[?] It makes no difference to you really but could make a difference to him and his
family.” But the prosecution remained unmoved, stating, “Sorry, . . . we can’t tailor a
sentence around a person’s potential immigration consequences.” Defendant ultimately
agreed to the prosecution’s terms and, according to his counsel’s statements at the plea,
his counsel “discussed with Mr. Tagintsev . . . the direct consequences stemming from his
plea” and defendant “underst[ood] those things.” These contemporaneous records from
the time of the plea tend to show that defendant’s counsel understood the potential
adverse immigration consequences of a plea, negotiated (unsuccessfully) in an effort to
avoid these consequences, and discussed these consequences with defendant.
Further tending to show that defendant knew of the potential immigration
consequences, defendant told the trial court that he understood his plea could result in
deportation. Before accepting defendant’s plea, the trial court asked him, “Do you
further understand that if you’re not a U.S. citizen of the United States, your plea today
could result in you being deported from the U.S., excluded from admission to the U.S., or
denied citizenship or naturalization?” Defendant, expressing no surprise at the question,
said, “Yes.” To be sure, as defendant notes, this type of acknowledgment is insufficient
in itself to show a defendant was truly aware of the adverse immigration consequences of
a plea. (People v. Patterson (2017) 2 Cal.5th 885, 889 [“receipt of the standard statutory
advisement that a criminal conviction ‘may’ have adverse immigration consequences
(Pen. Code, § 1016.5)” does not “bar[ ] a noncitizen defendant from seeking to withdraw
a guilty plea on that basis”].) But when paired with the other evidence discussed above,
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which tends to show that defendant’s counsel knew of the potential immigration
consequences and discussed these consequences with defendant, defendant’s
acknowledgment that he understood he could be deported further undermines his claim
under section 1473.7.
Attempting to counter this evidence, defendant maintains “that his appointed
counsel never discussed the immigration consequence to a plea and conviction.” He
appears to concede that “contemporaneous evidence reveals” that his counsel understood
that the plea could “lead[ ] to deportation,” but he disputes the idea that this “information
was given to [him].” He offers nothing, however, to corroborate this self-serving claim—
a claim, notably, that contradicts his counsel’s own claim that she “discussed with Mr.
Tagintsev . . . the direct consequences stemming from his plea” and that defendant made
for the first time over seven years after his plea. Considering the counter evidence
tending to show that his counsel understood the potential immigration consequences, and
so advised him, defendant’s bare claim is insufficient in itself to establish his entitlement
to relief.
Defendant alternatively contends his counsel might have advised him about
potential immigration consequences but, to the extent she did, “the advice given was
wrong.” He focuses on one of the three sentencing alternatives that his counsel proposed
to the prosecution—namely, “364 days instead of 365.” According to defendant, “[i]f it
was suggested or advised that a 364-day sentence would solve his immigration troubles,
that was misadvice.” That is because, he argues, although certain offenses are deportable
offenses only when the sentence is 365 days or longer, section 288 is a deportable offense
no matter the length of the sentence. But even assuming his counsel wrongly advised
him that a 365-day sentence would have immigration consequences, while a 364-day
sentence would not, that still does not advance his position. In this circumstance, the
critical point is that defendant still agreed to the 365-day sentence. He still agreed, that
is, to the sentence he understood would have adverse immigration consequences. And so
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he could not, in that case, complain that the “conviction or sentence is legally invalid due
to prejudicial error damaging [his] ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration consequences of a
conviction or sentence.” (§ 1473.7, subd. (a)(1).)
Considering this record, we decline to set aside the trial court’s ruling. Because
defendant had the burden to establish his entitlement to relief under section 1473.7, and
because he has not persuasively shown that his counsel failed to adequately advise him of
the adverse immigration consequences of his plea, we affirm the trial court’s order
declining to grant him relief. Based on this conclusion, we need not address the parties’
competing arguments about potential prejudice.
DISPOSITION
The trial court’s order is affirmed.
/s/
HOCH, J.
We concur:
/s/
HULL, Acting P. J.
/s/
DUARTE, J.
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