People v. Jung CA4/3 ( 2020 )

Filed 12/15/20 P. v. Jung CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G057958, G057959
v. (Super. Ct. Nos. 14NF4348,
15NF0802)
EUN SUNG JUNG,
OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Elizabeth G.
Macias, Judge. Reversed and remanded with directions.
Law Offices of Lori B. Schoenberg and Lori B. Schoenberg for Defendant
and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, Melissa Mandel and Adrian R. Contreras, Deputy Attorneys General, for
Plaintiff and Respondent.
* * *
INTRODUCTION
Eun Sung Jung appeals from an order denying her two motions to vacate
plea and conviction pursuant to Penal Code section 1473.7 (section 1473.7).1 She argues
the trial court erred by denying the motions because she had met her burden of proving
prejudicial error that damaged her ability to meaningfully understand the adverse
immigration consequences of her guilty pleas.
Jung is entitled to relief under section 1473.7. We follow People v. Mejia
(2019) 36 Cal.App.5th 859 (Mejia) and conclude a person’s own error in not
understanding or knowingly accepting that a guilty plea will have certain and adverse
immigration consequences may constitute prejudicial error entitling the person to relief
under section 1473.7. Mejia was issued several months after the trial court denied Jung’s
motions and therefore the court did not have the benefit of that opinion when concluding
such prejudicial error must have been committed by a third party. In support of the
section 1473.7 motions, Jung met her burden of proof by submitting her own declaration
and a declaration from her then trial counsel showing that, at the time of the pleas, she
did not meaningfully understand the adverse immigration consequences of pleading
guilty and would not have pleaded guilty if she did.
Jung’s earlier petitions for writ of habeas corpus, which alleged ineffective
assistance of counsel, did not bar Jung from seeking relief under section 1473.7 once she
was no longer in criminal custody. The order and findings denying Jung’s habeas corpus
petitions have, we shall assume, collateral estoppel or issue preclusion effect as to any
identical issue that was actually litigated and necessarily decided. But the issues whether
Jung meaningfully understood or knowingly accepted the adverse immigration
1
Section 1473.7, subdivision (a)(1) reads: “A person who is no longer in criminal
custody may file a motion to vacate a conviction or sentence for either of the following
reasons: [¶] (1) The 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 finding of legal invalidity may, but need not, include a
finding of ineffective assistance of counsel.”
2
consequences of her plea and convictions, and whether she suffered prejudice, were not
actually or necessarily determined in the habeas corpus proceedings: The trial court
denied the petitions solely on the ground that counsel’s performance was not deficient
and expressly declined to reach the issue of prejudice.
Jung established by a preponderance of the evidence the existence of a
ground for relief under section 1473.7, subdivision (a), and, therefore, the trial court erred
by denying her motions for relief. (§ 1473.7, subd. (e)(1).) In accordance with Mejia,
supra, 36 Cal.App.5th at page 872, we shall reverse with directions to the trial court to
grant the motions.
FACTS AND PROCEDURAL HISTORY
I. The Guilty Pleas and Immigration Advisements
Jung was born in South Korea in 1994. In 1998, at the age of three, she
was brought by her parents to the United States as a nonimmigrant visitor and has
continuously lived in this country since then. She is not a United States citizen and does
not have permanent resident status. In December 2012, United States Citizenship and
Immigration Services approved Jung’s application for Deferred Action for Childhood
Arrivals, granted her employment authorization, and, for a period of two years, deferred
action to remove her from the United States.
A felony complaint filed in October 2014 in Orange County Superior Court
(case No. 14NF4348) charged Jung with one count each of second degree commercial
burglary (Pen. Code, §§ 459, 460, subd. (b)), obtaining drugs by a forged prescription
(Health & Saf. Code, § 11368), possession of a controlled substance (id., § 11377, subd.
(a)), misdemeanor possession of controlled substance paraphernalia (id., § 11364.1, subd.
(a)), and misdemeanor identity theft with intent to defraud (Pen. Code, § 530.5, subd.
(c)(1)). A second felony complaint, filed in Orange County Superior Court in March
2015 (case No. 15NF0802), charged Jung with two counts of felony identity theft (Pen.
3
Code, § 530.5, subd. (a)) and one count each of sale or transportation of a controlled
substance (Health & Saf. Code, § 11379, subd. (a)), possession for sale of a controlled
substance (id., § 11378), misdemeanor receiving stolen property (Pen. Code, § 496, subd.
(a)), and misdemeanor possession of controlled substance paraphernalia (Health & Saf.
Code, § 11364.1, subd. (a)).
Case Nos. 14NF4348 and 15NF0802 were resolved together in November
2015 by means of plea agreements. In each case, Jung pleaded guilty to all charges, and
she and her counsel signed an advisement and waiver of rights for a felony guilty plea
(the plea form).
The plea form in case No. 14NF4348 indicated a maximum total
punishment of six years six months in prison; Jung agreed to a sentence of 180 days in
jail and three years of supervised probation. As the factual basis for the plea, Jung
offered these facts: “[O]n 10/12/14 I did unlawfully enter Walgreens, a commercial
building, [with] the intent to commit larceny. I also did unlawfully forge a prescription
bearing a forged [and] fictitious signature for a narcotic drug & then did possess that drug
secured by the forged prescription. I also did unlawfully possess a usable quantity of
methamphetamine, a controlled substance. I also did unlawfully possess a pipe used to
smoke drugs. I also did [with] the intent to defraud retain possession of the personal
identifying information of Chan P.”
The plea form in case No. 15NF0802 indicated a maximum total
punishment of five years four months; Jung agreed to a sentence of 180 days in jail and
three years of probation. As the factual basis for the plea, Jung offered these facts: “[O]n
6/17/14, I unlawfully possessed and transported methamphetamine for sale. I also
willfully and unlawfully obtained personal identifying information of Kimberly Park and
Doug M. and attempted to use that information for an unlawful purpose. I also received
unlawfully a C[alifornia] driver’s license and a check which had been stolen and
possessed a pipe used for smoking a controlled substance.”
4
On both plea forms, Jung initialed a provision, numbered paragraph 11,
stating: “Immigration consequences: I understand if I am not a citizen of the United
States, my conviction for the offense charged will have the consequence of deportation,
exclusion from admission to the United States, or denial of naturalization pursuant to the
laws of the United States.” On both plea forms, Jung initialed and signed a
representation that she had read, understood, and initialed each numbered item and had
discussed them with her attorney. Her counsel signed a representation on both plea forms
that he had explained to Jung each of the rights set forth on the forms and had discussed
with her “the possible sentence ranges and immigration consequences.”
At the change of plea hearing, the deputy district attorney asked Jung, “Do
you understand that, if you are not a United States citizen, your plea in this case will
result in you being deported, excluded from, and denied amnesty or naturalization in the
United States?” Jung answered, “yes.” The trial court accepted the pleas and found that
Jung had knowingly and voluntarily waived her constitutional rights. She was sentenced
to 180 days in jail, with 130 days of credit, in case No. 14NF4348 and received the same
sentence, to run concurrently, in case No. 15NF0802.
II. Jung’s Petitions for Writ of Habeas Corpus
A. The Writ Petitions
In January 2016, Jung was released from jail and entered the custody of
Immigration and Customs Enforcement (ICE). In May 2016, Jung, through retained
counsel, filed motions pursuant to Penal Code sections 1016.2 and 1016.3 to set aside the
convictions in case Nos. 14NF4348 and 15NF0802. The trial court construed the
motions as petitions for writs of habeas corpus and ordered Jung’s counsel to file an
amended petition in proper form.
Jung filed a petition for writ of habeas corpus in both case Nos. 14NF4348
and 15NF0802. The petitions do not appear in the record on appeal, but in the appellant’s
5
opening brief Jung states the petitions alleged that “she did not ascertain the immigration
consequences arising from her guilty pleas to the criminal charges against her in Orange
County Superior Court Case Nos. 14NF4348 and 15NF0802 because the deputy public
defenders who represented her during her criminal proceedings failed to investigate her
immigration status or advise her that her guilty pleas could subject her to removal
proceedings.” Jung submitted her own declaration in support, as well as two declarations
from an expert criminal defense attorney and various declarations from friends and
family.
B. The Evidentiary Hearing on the Writ Petitions
The trial court issued an order to show cause, the People filed a return, and
Jung filed a traverse. In September 2016, the court conducted an evidentiary hearing at
which both Jung and her prior defense counsel, Brian Okamoto, testified.
Jung testified that her prior defense attorney, Okamoto, handed her the plea
forms and told her to “sign them and initial them.” She spent a “couple of minutes”
reviewing the forms before signing them. Jung also testified that Okamoto did not speak
with her about immigration matters, tell her that signing the plea forms would have
immigration consequences for her, or advise her in any way about the immigration
consequences of her plea. Jung acknowledged that she placed her initials next to the
provision in the plea forms warning that she would be deported if she were not a United
States citizen. She testified, however, that she “didn’t read the whole thing” and nobody
from the public defender’s office had ever asked her about her immigration status. Jung
acknowledged that the prosecutor had asked her if she understood that, if she were not a
United States citizen, her plea would result in her deportation. She testified she
understood this to mean “I could possibly get deported for what I was signing for.” She
was “kind of scared” and not sure whether she would be deported. She did not realize
she might be deported until the following January, when she was placed on ICE hold.
6
Okamoto testified that, although he could not recall any specific interaction
with Jung, he did have a standard custom and practice that he uses in discussing a plea
offer and reviewing the plea form with a client. In every case in which a client accepts a
plea offer, Okamoto reviews the plea form “in its entirety” and “line by line” and
explains the advisements and waivers to clients “in a way for them to understand each
and every single one of . . . these numbered items on the [plea] form.” He spends “some
time” on the immigration consequence provision, asks about the client’s immigration
status, and provides the client more information about immigration consequences than is
given in the plea form. Okamoto testified that he followed his custom and practice when
representing Jung. In this case, because Jung was pleading guilty to deportable offenses,
Okamoto would have advised her that pleading guilty would lead to her deportation.
C. The Trial Court’s Ruling on the Writ Petitions
The trial court denied the petitions for writ of habeas corpus in a 10-page
order. The court found that Jung’s testimony was in direct conflict with Okamoto’s
testimony and, in resolving that conflict, stated: “[T]he court credits the testimony of Mr.
Okamoto and rejects the testimony of [Jung]. Mr. Okamoto testified with absolute
certainty about a custom and practice he has followed hundreds of times. The
declarations on the plea forms—certifying that he has reviewed ‘the contents of the
form[s]’ in general and the ‘immigration consequences’ in particular—strongly
corroborate his testimony. From the sincerity of his testimony, it was apparent to the
court that he takes this declaration very seriously.” As to Jung and her testimony, the
court found: “[Jung], on the other hand, testified uncertainly about a conversation that
occurred one time in her life when she was under immense stress from being in custody
and facing a potential for years in state prison. [Jung] admitted that, at the time, she did
not think the convictions were especially important and did not take the plea process very
seriously. Her testimony is contradicted by plea forms with her initials next to the
immigration consequences described in paragraph 11 and her signature under a
7
declaration certifying that she did review each numbered item with her attorney. The
court does not find that petitioner lied, but that, under the circumstances, she was
mistaken in failing to recall the entire conversation she had with her attorney.”
After reviewing the relevant law, the court concluded that Jung’s claim of
ineffective assistance of counsel failed because “her counsel did not perform deficiently.”
The court found: “Mr. Okamoto testified that, in every case, he asks his pleading clients
if they were born in the United States and reads paragraph 11 of the plea form stating, in
part, that the client understands that, if not a citizen, her conviction ‘will have the
consequence of deportation.’ Furthermore, Mr. Okamoto explains what the form means,
and, if defendants are pleading to deportable offenses, he tells clients that they will be
deported. The court finds that this case is no exception to Mr. Okamoto’s custom and
practice. In this case, as in every case, Mr. Okamoto signed a declaration specifically
stating that he ‘had discussed . . . the immigration consequences with defendant.’ As
discussed above, the court finds Mr. Okamoto’s testimony and his signature on this
declaration to be credible and [Jung]’s contrary testimony to be incredible. [¶] Because
defendant’s counsel’s performance was not deficient, the court need not reach the issue of
whether counsel’s performance caused prejudice in this case.”
III. Jung’s Section 1473.7 Motions
In September 2017, Jung filed a motion pursuant to section 1473.7 to
vacate plea and judgment in both case Nos. 14NF4348 and 15NF0802. The trial court
denied the motions on the ground that Jung, who was still on probation, was ineligible for
relief because section 1473.7 applies “only to persons ‘no longer imprisoned or
restrained.’”
In April 2019, when no longer in criminal custody, Jung filed a motion
pursuant to section 1473.7 to vacate plea and conviction in case No. 14NF4348 and in
case No. 15NF0802. These motions, the denial of which is the subject of this appeal, are
referred to as the Section 1473.7 Motions. In support of the Section 1473.7 Motions,
8
Jung submitted her own declaration and declarations from her then-current attorney
(Jennifer Lim), friends, and relatives. Jung declared that none of the public defenders
who had represented her, including Okamoto, had ever asked about her immigration
status or whether she was born in the United States. According to Jung, Okamoto
brought her the plea forms while she was in the holding cell next to the courtroom and
told her to initial all the empty spaces and sign the forms. She did as she was told. She
did not ask Okamoto to explain the forms because she assumed he knew what was best
for her. The first time she heard about the immigration consequences of her plea was
when she appeared in court the same day for sentencing and she heard someone mention
immigration consequences. She “felt trapped” and was “too intimidated” to ask
questions.
Jung declared that she did not learn her guilty pleas would lead to
deportation proceedings until she was taken into immigration custody in January 2016
and that “[i]f I had been properly advised or understood the immigration consequences
beforehand, I would not have accepted the plea bargain.”
Jung also obtained and submitted copies of the attorney notes from her case
file at the public defender’s office. The only reference to her immigration status in the
notes is on an intake sheet, where, at the line regarding citizenship, the box for “no” is
checked to indicate Jung is not a United States citizen, and the words “Korea, Permanent
Resident” are handwritten. The attorney notes from Jung’s case file did not describe any
negotiations with the district attorney’s office to drop or reduce the charges against Jung
in order to avoid adverse immigrations consequences from pleading guilty. Jung also
submitted a copy of the transcript of the evidentiary hearing for her petitions for writ of
habeas corpus.
Attorney Lim, who had practiced immigration law since 1992, made the
following assertions in her declaration:
9
1. Jung did not appear to have a “sophisticated understanding about the
immigration laws or meaningfully understood the immigration consequences of the
criminal charges she faced as she was barely 21 years old when she signed the plea
agreement.”
2. It appeared that Jung had never been asked about her immigration status
or informed about the immigration consequences of her guilty pleas before she signed the
plea agreements.
3. “Based on my experience, if the immigration consequences of the plea
were taken into account in most cases involving a non-citizen defendant, it would change
the plea bargaining process in a recognizable fashion, such as a deportable charge being
dropped or substituted [out] for a charge with lesser immigration consequence[s].”
4. “On the whole, it does not seem the immigration consequences of the
charges were analyzed in Defendant’s case”
The People submitted no declarations in opposition to the Section 1473.7
Motions but relied entirely on the order denying the petitions for writ of habeas corpus
and the order denying Jung’s first motions for relief under section 1473.7. The People
argued that Okamoto had competently represented Jung, she had been advised of the
immigration consequences of her plea before she signed the plea forms and in again open
court, and the Section 1473.7 Motions raised the same issues as Jung’s petitions for writ
of habeas corpus.
At the hearing on the Section 1473.7 Motions, the trial court stated it would
not revisit the issue of Okamoto’s credibility because it accepted the earlier finding that
Okamoto was credible and “not deficient in his performance given the standards at the
time of the guilty plea.” The court explained its objective in conducting a hearing was
solely to consider the issue of prejudicial error.
At the close of the hearing, the trial court denied the Section 1473.7
Motions. Placing its reasons on the record, the court again stated its analysis was limited
10
to the issue “whether there was an error by counsel which resulted in . . . prejudice to
[Jung].” After reviewing Jung’s declaration and Okamoto’s testimony from the
evidentiary hearing on the habeas corpus petitions, the court concluded that Jung had not
shown prejudice; that is, she had not shown her inability to meaningfully understand the
immigration consequences of her plea was caused by a third party. Although Jung had
suffered prejudice in the sense that she now faces deportation, “there was no prejudicial
error to affect her ability to meaningfully understand the immigration consequences.”
This appeal followed.
DISCUSSION
I. Standard of Review
Rulings on motions made pursuant to section 1473.7 are reviewed under
either the de novo standard or the abuse of discretion standard, depending on the basis of
the motion. A de novo standard of review applies when a motion pursuant to section
1473.7 is based on a constitutional right, such as the Sixth Amendment right to effective
assistance of counsel. (People v. Vivar (2019) 43 Cal.App.5th 216, 224 (Vivar), review
granted Mar. 25, 2020, S260270; People v. Fryhaat (2019) 35 Cal.App.5th 969, 975;
People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76.) A defendant’s claim of deprivation
of the constitutional right to effective assistance of counsel is a mixed question of fact
and law that is reviewed independently. (People v. Ogunmowo, supra, at p. 76.) The
appellate court accords deference to the trial court’s factual findings if substantial
evidence supports them, but exercises independent judgment in deciding whether the
facts demonstrate counsel’s deficient performance and resulting prejudice to the
defendant. (Vivar, supra, at p. 224; People v. Olvera (2018) 24 Cal.App.5th 1112, 1116;
People v. Ogunmowo, supra, at p. 76.) The interpretation of a statute is a question of law
subject to de novo review. (People v. Fryhaat, supra, 35 Cal.App.5th at pp. 975-976.)
11
The abuse of discretion standard applies when a motion pursuant to section
1473.7 seeks relief based on statutory error or deprivation of rights guaranteed by statute.
(Vivar, supra, 43 Cal.App.5th at p. 224; People v. Rodriguez (2019) 38 Cal.App.5th 971,
977-978; see People v. Patterson (2017) 2 Cal.5th 885, 894 [order under Penal Code
section 1018 permitting withdrawal of guilty plea reviewed for abuse of discretion];
People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 [order on motion to
vacate conviction under Penal Code section 1016.5 reviewed for abuse of discretion].)
The trial court’s factual findings are reviewed under the substantial evidence standard
while the trial court’s legal conclusions are reviewed de novo. (County of San Diego v.
Gorham (2010) 186 Cal.App.4th 1215, 1230.)
Under both standards of review, the appellate court does not reweigh the
evidence. (People v. Tapia (2018) 26 Cal.App.5th 942, 951.) The appellate court does
not reassess witness credibility but defers to the trial court’s credibility determinations.
(Id. at pp. 951, 953; People v. Harris (2015) 234 Cal.App.4th 671, 695.)
II. Section 1473.7
Section 1473.7, which became effective on January 1, 2017 (Stats. 2016,
ch. 739, § 1), authorizes a defendant “who is no longer in criminal custody” to 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 adverse
immigration consequences of a plea of guilty or nolo contendere.” (§ 1473.7, subd.
(a)(1).) “A finding of legal invalidity may, but need not, include a finding of ineffective
assistance of counsel.” (Ibid.; see People v. DeJesus (2019) 37 Cal.App.5th 1124, 1133.)
“[S]ection 1473.7 allows a defendant, who is no longer in custody, to
challenge his or her conviction based on a mistake of law regarding the immigration
consequences of a guilty plea or ineffective assistance of counsel in properly advising the
12
defendant of the consequences when the defendant learns of the error postcustody.”
(People v. Perez (2018) 19 Cal.App.5th 818, 828.) A trial court must grant the motion if
the defendant establishes by a preponderance of the evidence any ground for relief
specified in subdivision (a) of section 1473.7. (§ 1473.7, subd. (e)(1); see (People v.
Camacho (2019) 32 Cal.App.5th 998, 1011-1012 (Camacho) [the moving party
established a ground for relief by a preponderance of the evidence so “[t]he court was
thus required to grant the motion to vacate the conviction as invalid”].)
Section 1473.7 does not require a defendant to prove an ineffective
assistance of counsel claim in order to obtain relief. (Mejia, supra, 36 Cal.App.5th at
p. 871.) Thus, a defendant no longer must prove that counsel’s representation fell below
an objective standard of reasonableness under prevailing professional norms. (Camacho,
supra, 32 Cal.App.5th at p. 1008.) This means too that courts are not limited to the
standard for prejudice used in ineffective assistance of counsel claims—“a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different” (Strickland v. Washington (1984) 466 U.S. 668, 694)—when
ruling on motions brought under section 1473.7. (Camacho, supra, at p. 1009.) Instead,
prejudice arises when there is a reasonable probability that the defendant would not have
pleaded guilty and would have risked going to trial if the defendant had known that the
guilty plea would have mandatory and adverse immigration consequences. (Mejia,
supra, at p. 871; Camacho, supra, at pp. 1010-1011.)
III. Jung’s Habeas Corpus Petitions Did Not Bar Jung
from Seeking Relief Under Section 1473.7
The Attorney General argues section 1473.7 does not afford Jung relief
because, while in custody, she sought relief for ineffective assistance of counsel by
petitioning for writ of habeas corpus; that is, “[s]ection 1473.7 should not be interpreted
to give a defendant multiple bites at the apple, providing yet another opportunity for an
13
out-of-custody defendant to re-raise a successive claim previously raised and rejected
while in custody, particularly when no new substantive support is offered.”
Nothing in the language of section 1473.7 bars relief for a defendant who,
while in criminal custody, brought a petition for writ of habeas corpus that was denied. A
legislative purpose in enacting section 1473.7 was to grant those persons not in custody
the same or similar right to relief as those persons in custody to move to vacate a
conviction or sentence based on error in advising that person of the potential immigration
consequences of a guilty or no contest plea. (Assem. Bill No. 813 (2015-2016 Reg.
Sess.) § 1.) But this legislative purpose does not lead to the conclusion that the
Legislature intended that a defendant who had been denied relief while in custody would
not be able to seek relief under section 1473.7 once out of custody. The Legislature
easily could have expressed that intent if it had meant to do so.
The recent amendments to section 1473.7 made clear that it did not require
a finding of ineffective assistance of counsel in order to grant relief. Habeas corpus
petitions based on inadequate immigration advisements by counsel typically allege
ineffective assistance of counsel: That was the case here. A motion under section 1473.7
that is based on a ground other than ineffective assistance of counsel is not asserting that
same ground for relief alleged in a prior habeas corpus petition.
Successive petitions for writ of habeas corpus are generally not permitted
because they are considered wasteful of judicial resources and undermine the finality of
judgments. (In re Clark (1993) 5 Cal.4th 750, 770.) A motion under section 1473.7 is
not a petition for writ of habeas corpus but a statutorily authorized and defined means to
challenge a judgment on the grounds specifically identified in the statute. Issues of
inefficiency, waste, and finality of judgments can be dealt with, if necessary, by applying
principles of collateral estoppel to decisions and findings rendered in prior habeas corpus
proceedings. We shall assume, for purposes of this opinion, that the order denying
Jung’s petitions for writ of habeas corpus is given collateral estoppel effect.
14
IV. Jung Is Entitled to Relief Under Section 1473.7
The trial court denied the Section 1473.7 Motions on the ground that Jung
had not shown prejudice; that is, she had not shown “there was a third party [who]
caused for her not to meaningfully understand the consequences.” (Italics added.) But to
obtain relief under section 1473.7, a person need not prove ineffective assistance of
counsel but only a “prejudicial error,” which may be the moving party’s own mistake of
law or inability to understand the potential adverse immigration consequences of the plea.
(Mejia, supra, 36 Cal.App.5th at p. 862; Camacho, supra, 32 Cal.App.5th at p. 1009;
People v. Perez, supra, 19 Cal.App.5th at p. 828.)
In Mejia, supra, 36 Cal.App.5th at page 862, a panel of this court held that,
to establish prejudicial error under section 1473.7, a defendant need only prove by a
preponderance of the evidence: “(1) [she] did not ‘meaningfully understand’ or
‘knowingly accept’ the actual or potential adverse immigration consequences of the plea;
and (2) had [she] understood the consequences, it is reasonably probable [she] would
have instead attempted to ‘defend against’ the charges.” In 1993, the defendant in Mejia
was charged with three felony counts related to possession for sale of cocaine or cocaine
base. (Mejia, supra, at p. 862.) He pleaded guilty and initialed an immigration
advisement on the plea form stating he understood that if he was not a United States
citizen the conviction “may have the consequence of deportation, exclusion from
admission to the United States, or denial of naturalization pursuant to the laws of the
United States.” (Id. at p. 863.) He served a 120-day jail sentence. (Ibid.)
In 2017, the defendant brought a motion pursuant to section 1473.7 to have
his convictions vacated. (Mejia, supra, 36 Cal.App.5th at p. 863.) He submitted a
declaration in which he stated his former attorney (by that time deceased) had told him he
had no choice but to take the plea deal, never asked about his immigration status or
explained that pleading guilty would lead to deportation, and told him to sign all the
boxes on the plea form. (Ibid.) The defendant declared that he would have fought the
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charges or tried to negotiate an immigration-neutral plea if he had known that pleading
guilty to the charges would lead to deportation. (Ibid.) An evidentiary hearing was
conducted at which the defendant testified that his prior attorney did not discuss the
possible immigration consequences of his plea and that he would not have accepted the
negotiated plea and pleaded guilty if he had known “this would harm me in the future.”
(Id. at pp. 864-865.) The trial court in denying the motion treated the defendant’s claim
as one based on ineffective assistance of counsel and concluded the defendant “‘has
failed to make a sufficient showing that he would have declined the plea and risked going
to trial had he been more fully apprised of its immigration consequences.’” (Id. at p. 865)
The Court of Appeal, reversing, agreed with the defendant that the “key” to
section 1473.7 is not what the defense attorney said or did not say about the immigration
consequences of the plea, but is “the mindset of the defendant and what he or she
understood—or didn’t understand—at the time the plea was taken.” (Mejia, supra, 36
Cal.App.5th at p. 866.) Under section 1473.7, the “prejudicial error” damaging the
moving party’s ability to meaningfully understand the potential immigration
consequences of the guilty plea thus can be “‘the defendant’s own error in . . . not
knowing that his plea would subject him to mandatory deportation and permanent
exclusion from the United States.’” (Mejia, supra, at p. 870, quoting Camacho, supra, 32
Cal.App.5th at p. 1009.)
The Court of Appeal concluded that the defendant’s undisputed testimony
at the evidentiary hearing established he did not meaningfully understand or knowingly
accept the immigration consequences of his guilty plea and would not have pleaded
guilty if he did. (Mejia, supra, 36 Cal.App.5th at p. 872.) The trial court had never made
an express or implied credibility determination on those points because the court had
focused on whether trial counsel’s performance was deficient. “In short,” the Court of
Appeal stated, “[the defendant] plainly established his own ‘error’ within the meaning of
section 1473.7, subdivision (a).” (Ibid.)
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As to prejudice, the court concluded there was contemporaneous evidence
to substantiate the defendant’s claim he would not have accepted the plea agreement if he
had known the immigration consequences of pleading guilty. (Mejia, supra, 36
Cal.App.5th at p. 872.) This contemporaneous evidence included the defendant’s own
life story (he was brought to the United States from Mexico at age 14; at the time of the
guilty plea he had a wife and an infant son here), and the preliminary hearing transcript,
which left uncertainties as to the strength of the prosecution’s evidence. Given the
overall circumstances, it was likely that even after trial, the court would have sentenced
the defendant to no more than a year in jail and probation. (Id. at pp. 872-873.)
Having found the trial court erred by denying the section 1473.7 motion,
the Court of Appeal concluded the appropriate remedy was to reverse with directions to
the trial court to grant the motion. (Mejia, supra, 36 Cal.App.5th at pp. 862, 873.)
Jung proved the requirement of prejudicial error as defined in Mejia. In
support of the Section 1473.7 Motions, Jung submitted a declaration in which she
testified that she signed and initialed the plea, as her counsel had instructed, while she
was in the holding cell next to the courtroom. She did not ask Okamoto to explain the
plea forms because “I assumed that he knew what was best for me.” She had not
previously consulted an immigration attorney and did not understand what immigration
consequences pleading guilty would have. The first time she heard anything about
immigration consequences was when she appeared in court for sentencing, after she had
signed the plea forms. She did not ask questions because she “felt trapped” and “was too
intimidated.” She served her jail time and, she declared, “[i]t was only when I was taken
into immigration custody in January 2016, that I realized that I would face deportation
proceedings from my criminal record due to the plea agreement that I signed.” Jung
declared: “If I had been properly advised or understood the immigration consequences
beforehand, I would not have accepted the plea bargain on November 2, 2015.”
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Jung supplied contemporaneous evidence to substantiate her claims. She
was barely 21 years old when she entered her guilty pleas. She was brought to the United
States from South Korea at age three; she grew up and attended school in the United
States; she considers the United States to be her home; and her friends, family, and
community ties are here. Deportation to South Korea would uproot her from her life in
this country and separate her from her family. Jung’s attorney submitted a declaration
stating it appeared that “many of the criminal charges went beyond the available evidence
or the severity of the alleged offense” and “[d]ue to the practice of ‘over-charging’, I
would not accept these charges at face value.” Counsel believed the conduct charged
against Jung, though “harmful,” did not appear to be “sophisticated.” This evidence
supports a finding that, had Jung meaningfully understood the adverse immigrations
consequence of pleading guilty, she would have gone to trial and taken the risk of a
harsher sentence.
In opposition to the Section 1473.7 Motions, the prosecutor relied entirely
on the order in the prior habeas corpus proceedings and the order denying Jung’s first
motion under section 1473.7. The prosecutor did not submit declarations to dispute
Jung’s declaration that she did not meaningfully understand the adverse immigration
consequences of pleading guilty. In denying the Section 1473.7 Motions, the trial court
made no findings on the credibility of the declarations of Jung and her counsel.
Under Mejia, Jung’s “‘own error in . . . not knowing that [her] plea would
subject [her] to mandatory deportation and permanent exclusion from the United States’”
satisfied the requirement for relief under section 1473.7. (Mejia, supra, 36 Cal.App.5th
at p. 870.) Jung proved that “[she] did not ‘meaningfully understand’ or ‘knowingly
accept’ the actual or potential adverse immigration consequences of the plea” and “had
[she] understood the consequences, it is reasonably probable [she] would have instead
attempted to ‘defend against’ the charges.” (Id. at p. 862.) The trial court, not having the
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benefit of Mejia, focused instead on whether a third party caused Jung to suffer prejudice
rather than considering Jung’s mindset when pleading guilty.
V. Collateral Estoppel Does Not Bar Relief
for Jung Under Section 1473.7
The doctrine of collateral estoppel or issue preclusion prevents “the
relitigation of issues argued and decided in a previous case, even if the second suit raises
different causes of action.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.)
“Under issue preclusion, the prior judgment conclusively resolves an issue actually
litigated and determined in the first action.” (Ibid.) “[I]ssue preclusion applies (1) after
final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in
the first suit and (4) asserted against one who was a party in the first suit or one in privity
with that party.” (Id. at p. 825, citing Lucido v. Superior Court (1990) 51 Cal.3d 335,
341.)
In denying Jung’s habeas corpus petitions, the trial court resolved only the
issue of counsel’s performance: The court declined to reach the issue of prejudice
because it had found that counsel’s performance was not deficient. Although the court
found Jung to be not credible or mistaken in her testimony that the immigration
consequences were never explained to her, the court made no findings on the issue
whether Jung actually and meaningfully understood the adverse immigration
consequences of pleading guilty. That issue was not necessarily decided in the habeas
corpus proceeding because the finding that counsel’s performance was not deficient was
sufficient in itself to support denial of the petitions.
In People v. Ruiz (2020) 49 Cal.App.5th 1061 (Ruiz), the Court of Appeal
addressed a similar situation. The defendant had brought a motion for relief under
section 1473.7 that was denied in 2017. (Ruiz, supra, at p. 1064.) The defendant brought
a second motion for relief under section 1473.7 in 2019, which the trial court denied as an
untimely motion for reconsideration. (Ruiz, supra, at pp. 1064-1065.) The Court of
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Appeal reversed on the ground the order denying the defendant’s 2017 motion did not
collaterally estop the defendant from bringing the 2019 motion. (Id. at pp. 1068-1070.)
The defendant’s 2017 motion was made before the Legislature amended section 1473.7
to clarify the moving party need not prove a claim for ineffective assistance of counsel
and to enlarge the time period for seeking relief. (Ruiz, supra, at pp. 1067, 1069.) “The
new 2019 law provides a different standard for challenging and prevailing based on
immigration advisement errors. Because it involves different issues than [the
defendant]’s prior motion, [the defendant]’s current motion is not barred by collateral
estoppel.” (Id. at p. 1069.)
In Ruiz, the Court of Appeal held that denial of a section 1473.7 motion
based on ineffective assistance of counsel did not collaterally estop the defendant from
bringing a later motion under section 1473.7, after the Legislature had clarified the
moving party need not show ineffective assistance. Likewise here, denial of Jung’s
petitions for writ of habeas corpus, which alleged ineffective assistance of counsel, did
not collaterally estop her from obtaining relief under section 1473.7 on a different
ground. The issues whether Jung meaningfully understood or knowingly accepted the
adverse immigration consequences of pleading guilty, and whether she suffered
prejudice, were not actually or necessarily determined in the prior habeas corpus
proceedings. Thus, the order denying Jung’s habeas corpus petitions did not conclusively
resolve those issues.
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DISPOSITION
The order denying Jung’s motions to vacate plea and conviction pursuant to
section 1473.7 is reversed and the matter is remanded to the trial court with directions to
grant the motions.
FYBEL, J.
WE CONCUR:
_____
MOORE, ACTING P. J.
ARONSON, J.
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