People v. Simpson CA3 ( 2022 )

Filed 8/30/22 P. v. Simpson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C093708
Plaintiff and Respondent, (Super. Ct. No. 16CF00158)
v.
RICKY OLIVER SIMPSON,
Defendant and Appellant.
Defendant Ricky Oliver Simpson is a noncitizen who moved to the United States
in 2013. He appeals from the trial court’s denial of a motion to vacate his 2016 drug
trafficking conviction, which subjects him to removal from the country under federal
immigration law. Arguing he would have rejected the plea had he correctly understood
the immigration consequences, defendant contends his conviction is invalid due to
prejudicial error. We will affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant’s crime and plea
In December 2015, defendant was stopped by police for driving through a stop
sign at approximately 10 miles per hour. When police searched his car, they found
approximately 30 pounds of marijuana. Defendant was arrested and charged with
transportation of marijuana for sale (Health & Saf. Code, § 11360, subd. (a)) and
possession of marijuana for sale. (Health & Saf. Code, § 11359.)
In June 2016, defendant pleaded no contest to violating Health and Safety Code
section 11359. As part of his plea, he signed a form setting forth the rights he was
waiving. Among other things, he initialed the box next to the statement: “If I am not a
citizen, I am hereby advised that conviction of the offense for which I 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. By signing
this form, I acknowledge that, if it applies to me, I am aware of this potential
circumstance, have discussed it with my attorney (if I have one,) and am entering this
plea with full knowledge of the potential immigration consequences.” The first sentence
of this statement mirrors the text of Penal Code section 1016.5, subdivision (a),1 which
contains the immigration advisement to be given to defendants before acceptance of a
plea of guilty or nolo contendere.
Defendant signed the form and declared under penalty of perjury that he had
“read, understood, and initialed each item above, and everything on the form is true and
correct.” Defense counsel Ryan Lamb (Lamb) also signed the statement indicating that
he had “reviewed this form with my client and have explained each of the defendant’s
rights to him/her and answered all his/her questions with regard to his/her plea. Further, I
1 Undesignated statutory references are to the Penal Code.
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have discussed with my client the content, substance, and meaning of all items and
paragraphs initialed by him/her. I have [also] explained the consequences of his/her
plea.”
The probation report indicated defendant had no criminal record and was
remorseful for his behavior. Although his parents still lived in Jamaica, he did not know
their address. He also had multiple siblings, although the report did not indicate where
they lived. Defendant had lived at his then-current address in Southern California for
over a year, and he had worked for his employer for three years. He had a minor
daughter whom he supported, and he had applied to a local school to become a mortician.
Defendant was married.
With respect to the instant offense, defendant had been visiting his cousin in Butte
County and was considering moving there. His cousin had asked him to deliver some
boxes to his cousin’s wife, who was to meet him at a local home improvement store.
While en route to the store, defendant was pulled over for running a stop sign. Upon
discovering the boxes in defendant’s vehicle, the officer asked for permission to open
them. Defendant believed the boxes would not contain anything illegal and gave consent.
After his arrest, defendant’s cousin disappeared and disconnected his phone. Defendant
asked for probation. He promised to follow the rules and stated he did not want any legal
trouble. The probation report noted that the circumstances of defendant’s crime were not
more egregious compared to other instances of the same crime, and probation was
recommended.
During the August 2016 sentencing hearing, the trial court suspended imposition
of sentence and ordered three years of probation. Defense counsel asked the court to stay
the typical 30-day jail term, noting that defendant’s employer said he would be unable to
keep his job if he was incarcerated. The conditions of probation included: “If deported
or caused to return to your country of citizenship, you are not to enter the United States
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illegally. If you enter the United States legally or illegally, you are to report, in person, to
the [probation department] within five (5) days of entry into the United States.”
B. First section 1473.7 motion
In April 2019, defendant filed his first motion to withdraw his plea pursuant to
section 1473.7, which enables an out-of-custody defendant to file a motion to vacate a
conviction upon a showing by a preponderance of evidence 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.” (§ 1473.7, subd. (a)(1); see also
§ 1473.7, subd. (e)(3) [allowing withdrawal of guilty pleas].)
Defendant’s new counsel submitted a declaration in support of the motion stating
that defendant’s previous counsel (Lamb) convinced defendant to plead to the drug
charges, but failed to tell defendant that the conviction would cause “immigration
problems.” It is unclear where counsel obtained this knowledge.
Defendant also signed a declaration stating that Lamb “never explicitly told [him]
that the charges would negatively impact [his] immigration status,” and that had he
“known of the immigration consequences, [he] would not have entered a ‘no contest’
plea.”
Before the July 2019 hearing on the motion, defendant’s immigration lawyer sent
a letter to the court stating that defendant was currently in deportation proceedings for
“failure to remove conditions from his green card and having a drug conviction” and was
“inadmissible and deportable” under section 212(a)(2)(C)(i) of the Immigration and
Nationality Act due to his conviction for violating Health and Safety Code section 11359.
(8 U.S.C. § 1182(a)(2)(C)(i).)
During the July 2019 hearing, the trial court reduced defendant’s conviction to a
misdemeanor pursuant to Proposition 64, the Control, Regulate and Tax Adult Use of
Marijuana Act of 2016. (Health & Saf. Code, § 11362.1.) Turning to defendant’s section
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1437.7 motion, defense counsel argued that the plea form insufficiently advised
defendant of the immigration consequences because it used the word “may.” The
prosecutor objected, arguing defendant had failed to present any information indicating
Lamb failed to properly advise defendant. The court agreed with the prosecutor that
defendant had been properly advised under the law and denied defendant’s motion.
C. Second section 1473.7 motion
In October 2020, defendant filed another section 1473.7 motion. Defendant
argued Lamb was ineffective because Lamb failed to advise him of the adverse
immigration consequences of his plea deal. And defendant never would have agreed to
the plea deal had he understood the immigration consequences. Defendant further argued
the trial court’s admonition during the plea hearing was insufficient because defendant
needed Lamb’s advice.
Defendant attached a copy of his permanent resident card and papers related to his
removal proceedings indicating he was a Jamaican citizen, was born in 1981, and had
resided in the United States since 2013. He also submitted a declaration stating that he
had informed Lamb of his immigration status. Defendant had trusted Lamb to advise him
of all potential consequences of accepting the plea deal, but Lamb never mentioned any
immigration consequences. Defendant was now facing deportation proceedings, and he
would have never taken the plea deal had he known about the immigration consequences.
Defendant’s immigration attorney, Keith Campbell, informed defendant that if defendant
could withdraw his plea and enter a different plea, he would have other options and
would not necessarily be deported.
Also attached was a declaration from defendant’s Butte County attorney, Andrew
D. Holley, stating that Lamb told him he had no recollection of seeking the advice of an
immigration attorney in connection with defendant’s plea. There also was no note in
defendant’s case file indicating that Lamb had ever consulted an immigration attorney.
According to Holley, no immigration attorney would ever advise taking the plea at issue
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here because it involves an aggravated felony under the immigration law and would lead
to deportation. Holley speculated a different plea would have been preferable, even if it
resulted in more severe criminal consequences.
The prosecutor opposed defendant’s motion, arguing defendant had been informed
that he might face immigration consequences via his plea form as required under section
1016.5, subdivision (a). According to the prosecutor, defendant had failed to establish
any misunderstanding regarding the immigration consequences, or that he would have
rejected the plea deal in order to negotiate a deal that did not result in deportation.
Finally, given the circumstances of the crime, it was unlikely that any more favorable
outcome would have occurred. The prosecutor argued that it would not have been
appropriate under the facts of the case to plead to other charges that carried no
immigration consequences.
The prosecutor attached a declaration from Lamb stating that it was his “common
practice to advise clients of all possible immigration and other consequences of their plea
in every criminal case. It is also [his] common practice to go over each plea form with
each client, including the section which advises of immigration consequences, and will
only join in the plea if [he] believe[d] they understand the nature and consequences of
their plea.”
During the January 2021 hearing, the trial court noted that it had reviewed the
briefs and evidence. Holley argued Lamb had failed to adequately investigate the
immigration consequences of the plea because he failed to discuss the matter with an
immigration attorney. Here, immigration consequences could have been avoided had
defendant pleaded to a nonaggravated felony such as an accessory crime under section
32. Holley noted that he had negotiated similar pleas for other clients in neighboring
counties. Holley further noted that the prosecutor had made the original plea offer, and
Lamb did not try to negotiate anything different.
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The trial court denied defendant’s motion, reasoning that the evidence established
that defendant had been adequately advised regarding the immigration consequences of
his plea. The court noted the advisement in the plea form, and Lamb’s statement in his
declaration that it was his practice to review immigration consequences.
Defendant timely appealed.
DISCUSSION
I
A. Legal background
Section 1473.7, subdivision (a)(1) (as amended by Assem. Bill No. 1259 (2021-
2022 Reg. Sess.) (Stats. 2021, ch. 420, § 1)) provides that a person who is no longer in
criminal custody may file a motion to vacate a conviction or sentence on the basis
“ ‘ “[t]he conviction or sentence is legally invalid due to prejudicial error damaging the
moving party’s ability to meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of a plea of guilty or nolo
contendere.” ’ ” (People v. Rodriguez (2021) 68 Cal.App.5th 301, 308.) “ ‘A finding of
legal invalidity may, but need not, include a finding of ineffective assistance of counsel.’
[Citation.]” (Id. at p. 310.) (See People v. Rodriguez (2021) 60 Cal.App.5th 995, 1002.)
To establish prejudicial error, a defendant must demonstrate “a reasonable
probability that [he] would have rejected the plea if [he] had correctly understood its
actual or potential immigration consequences.” (People v. Vivar (2021) 11 Cal.5th 510,
529 (Vivar).) Courts must consider the totality of the circumstances (ibid.), including 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.” (Id. at p. 530; see People v. Mejia (2019) 36 Cal.App.5th 859, 866 [the key
consideration is the defendant’s mindset at the time the plea was taken].)
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Hence, defendant must show that (1) an error damaged his ability to meaningfully
understand, defend against, or knowingly accept the actual or potential adverse
immigration consequences of the plea, and (2) he would not have entered the plea with
knowledge of the immigration consequences. (People v. DeJesus (2019) 37 Cal.App.5th
1124, 1133.) Proof must be by “a preponderance of the evidence.” (§ 1473.7, subd.
(e)(1).)
A trial court’s denial of a section 1473.7 motion is subject to independent review.
(Vivar, supra, 11 Cal.5th at pp. 524, 528.) Where, as here, “the facts derive entirely from
written declarations and other documents, . . . ‘[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, at p. 528.) In such cases, “it is for the appellate
court to decide, based on its independent judgment, whether the facts establish prejudice
under section 1473.7.” (Vivar, at p. 528.)
B. Analysis
We find that defendant has not proven by a preponderance of the evidence any
error justifying relief under section 1473.7, subdivision (a)(1). The plea form defendant
initialed warned him of immigration consequences, including that a conviction may result
in deportation. And Lamb declared that it was his typical practice to ensure that clients
understood the consequences of their pleas, including immigration consequences, before
he would join in the plea.
Even assuming, however, that defendant was not adequately advised about the
immigration consequences of his plea, he also has not demonstrated prejudice.
Prejudicial error under section 1473.7, subdivision (a)(1) is “not limited to the
Strickland[2 ] test of prejudice, whether there was reasonable probability of a different
2 Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674].
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outcome in the original proceedings absent the error.” (People v. Camacho (2019) 32
Cal.App.5th 998, 1009.) Instead, a defendant must prove by a preponderance of
contemporaneous evidence that he would not have entered the plea and would have
risked going to trial had he known about the adverse immigration consequences. (Id. at
pp. 1011-1012; People v. DeJesus, supra, 37 Cal.App.5th at p. 1133.)
Here, the contemporaneous evidence in the record at the time of defendant’s plea
reveals that his priority was to avoid jail time to maintain his employment. Defendant
voiced no concerns about immigration consequences during his plea hearing.
Defendant’s ties to the United States also were limited at the time of the conviction. He
had only lived here for three years at the time of his plea and, except for his cousin, his
family lived in Jamaica. Finally, despite Holley’s statements that he had successfully
negotiated immigration-neutral plea deals for clients facing similar charges in
neighboring counties, the prosecutor argued that the suggested alternate charges were
inappropriate under the facts of the instant case. Under the circumstances, defendant has
failed to meet his burden to establish a reasonable probability that he would have been
able to secure an alternative plea arrangement, or rejected the plea and gone to trial, if he
had understood the actual or potential immigration consequences of deportation.
DISPOSITION
The order is affirmed.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
HOCH , J.
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