P. v. Lucero CA2/7 ( 2023 )

Filed 3/13/23 P. v Lucero CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B317506
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA056248)
v.
JUAN LUCERO,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Christian R. Gullon, Judge. Affirmed.
Robert E. Myers, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and Steven D.
Matthews, Supervising Deputy Attorneys General, for Plaintiff
and Respondent.
______________________
Juan Lucero pleaded guilty pursuant to a negotiated
agreement in 2003 to one count of possession of a controlled
substance for sale pursuant to Health and Safety Code
section 11351 and was sentenced to three years of probation on
condition he serve 90 days in county jail.1 On July 30, 2021
Lucero moved pursuant to Penal Code section 1473.7
(section 1473.7) to vacate his conviction on the ground prejudicial
error damaged his ability to meaningfully understand the
potential adverse immigration consequences of his plea. The
superior court denied the motion after an evidentiary hearing,
finding no credible evidence Lucero would have rejected the
proposed plea agreement to avoid possible immigration
consequences. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Lucero’s Plea and Conviction
Lucero was charged in a one-count criminal complaint in
March 2002 with possession of a controlled substance in violation
of Health and Safety Code section 11351 (unlawful possession for
sale)—an offense then punishable by two, three or four years in
state prison. (See Stats. 2000, ch. 8, § 4.)2 On January 3, 2003,
pursuant to an agreement negotiated prior to a preliminary
1 In May 2021 Lucero was permitted to withdraw his guilty
plea, and the charge against him was dismissed pursuant to
Penal Code section 1203.4.
2 The sentence of two, three or four years for violation of
Health and Safety Code section 11351 may now be served in a
county jail pursuant the Penal Code section 1170, subdivision (h),
part of the Criminal Justice Realignment Act of 2011.
2
hearing, Lucero entered a plea of guilty to the charge and was
sentenced to three years’ probation on condition he serve 90 days
in county jail, with 33 days of custody credit.
The written plea agreement signed and initialed by Lucero,
which indicated the maximum term for the offense was four
years, stated, “I understand if I am not a citizen of the United
States, the conviction for the offense 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.” In addition to initialing the immigration
advisement, Lucero initialed the boxes next to the statements
that he was “pleading guilty to take advantage of a plea bargain”
and had “discussed the charge(s), the facts and the possible
defenses with my attorney.”
At the outset of the hearing on Lucero’s section 1473.7
motion, the court stated, “The plea transcript indicates that
Mr. Lucero, while using the services of an interpreter, was asked
about his plea form and whether the interpreter translated the
form, whether he understood what his lawyer and the interpreter
told him about the form, whether he placed the initials in the
boxes on the form, and whether he signed the form. And then,
orally, he was admonished [at] page five, starting at line one, by
the prosecutor, of the immigration consequences, through
line seven.”3
3 The record on appeal does not contain the transcript of the
plea hearing. A reporter’s affidavit included with the record
indicated the notes were destroyed and stated a transcript could
not be prepared. The Attorney General in his respondent’s brief
explained that the effort to locate a copy of the transcript has
been unsuccessful.
3
The minute order from the January 3, 2003 hearing
confirmed that Lucero was advised of, and personally and
explicitly waived, his constitutional rights and acknowledged the
effects of his conviction and probation before entering his plea,
including, “If you are not a citizen, you are hereby advised that a
conviction of the offense for which you have been charged will
have the consequences of deportation, exclusion from admission
to the United States, or denial of naturalization pursuant to the
laws of the United States.”
2. Lucero’s Motion To Vacate His Conviction
Lucero, represented by counsel, filed a motion to vacate his
conviction pursuant to section 1473.7 on July 30, 2021. In the
one-page declaration filed with the motion, Lucero stated he was
born in Durango, Mexico in August 1977 and moved to the
United States in early 1994 when he was 17 years old. Lucero
married in 2013; he and his wife have four children. He stated he
considered the United States his home since arriving here and
always intended to become a citizen one day.
With respect to his plea, Lucero declared his counsel never
advised him of any immigration consequences. Counsel
recommended he accept the plea agreement because three grams
of cocaine had been found in his jacket pocket after he was pulled
over for speeding.
4
The People filed no response to Lucero’s motion.
Testifying at the November 29, 2021 hearing on his motion
with the assistance of a Spanish-language interpreter, Lucero
initially said his appointed counsel “told me to accept the charges
that were filed against me because, if I was going to fight the
charges, I was going to need a public defender,” but then said his
counsel (a public defender) told him, if he did not want to take
the deal, “I would not need a public defender, but an attorney
that I would have to pay for myself.” Asked if he remembered his
counsel advising him of any adverse plea consequences that
would result from his plea, Lucero said, “I do remember his
words, but I don’t remember that he—I don’t remember him
letting me know about the consequences with immigration.” He
then confirmed he had signed the form waiving his rights and
containing the immigration advisement.4 Lucero did not testify
(and did not assert in his declaration) that he did not understand
his guilty plea would affect his immigration status or claim he
would not have accepted the plea agreement and entered a guilty
plea if he had understood the immigration consequences of doing
so.
The superior court denied the motion, explaining, “I don’t
have any evidence before me that is credible that he would not
have otherwise gone forward with the plea based on his
immigration issues. . . . Sounds like he did it because he knew he
had the drugs, and this was the best deal, and he didn’t want to
deal with hiring a lawyer if that was going to be the case. I don’t
know what his wherewithal would have been at the time.
Perhaps he was advised that he would have a lawyer while he
4 There was no cross-examination by the prosecutor.
5
was in custody, but if he got released, he would have the
wherewithal to hire his own lawyer. I don’t know. But it sounds
like there [were] a lot of things other than immigration as being
the ones that he was taking into consideration. And there is no
statement, even now, indicating that, had he understood that he
was—although it was explained to him both in writing with the
use of an interpreter on the form and directly orally during the
taking of the plea—that he would not have taken the deal,
instead fighting tooth and nail, even though it looks like they
caught him red-handed, in order to possibly avoid immigration
consequences.”
Lucero filed a timely notice of appeal.
DISCUSSION
1. Governing Law and Standard of Review
Section 1473.7, subdivision (a)(1), authorizes a person who
is no longer in criminal custody to move to vacate a conviction or
sentence on the ground 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.” (See People v. Espinoza (2023) 14 Cal.5th 311, 319
(Espinoza); People v. Lopez (2022) 83 Cal.App.5th 698, 709.)
Effective January 1, 2019 the statute was amended to provide
“[a] finding of legal invalidity may, but need not, include a
finding of ineffective assistance of counsel.” (See Stats. 2018,
ch. 825, § 2.) “Thus, although the motion to vacate is
fundamentally based on errors by counsel, the moving party need
not demonstrate that ‘counsel’s representation fell below an
objective standard of reasonableness’ ‘under prevailing
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professional norms.’” (Lopez, at 709; accord, People v. Manzanilla
(2022) 80 Cal.App.5th 891, 904.)
“A successful section 1473.7 motion requires a showing, by
a preponderance of the evidence, of a prejudicial error that
affected the defendant’s ability to meaningfully understand the
actual or potential immigration consequences of a plea.” (People
v. Vivar (2021) 11 Cal.5th 510, 517 (Vivar); accord, Espinoza,
supra, 14 Cal.5th at p. 319; see § 1473.7, subd. (e)(1) [“[t]he court
shall grant the motion to vacate the conviction or sentence if the
moving party establishes, by a preponderance of the evidence, the
existence of any of the grounds for relief specified in
subdivision (a)”].) “What someone seeking to withdraw a plea
under section 1473.7 must show is more than merely an error
‘damaging the moving party’s ability to meaningfully understand,
defend against, or knowingly accept the actual or potential
adverse immigration consequences’ of the plea. [Citation.] The
error must also be ‘prejudicial.’” (Vivar, at p. 528.) “[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.” (Vivar, at
p. 529; accord, Espinoza, at p. 319; People v. Rodriguez (2021)
60 Cal.App.5th 995, 1003 [“[a] defendant requesting relief under
section 1473.7 bears the burden of establishing by a
preponderance of evidence that there is a reasonable probability
that he or she would not have entered into the plea agreement if
he or she had meaningfully understood the associated adverse
immigration consequences”].)
“When courts assess whether a petitioner has shown that
reasonable probability, they consider the totality of the
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circumstances. [Citation.] Factors particularly relevant to this
inquiry include the defendant’s ties to the United States, the
importance the defendant placed on avoiding deportation, the
defendant’s priorities in seeking a plea bargain, and whether the
defendant had reason to believe an immigration-neutral
negotiated disposition was possible.” (Vivar, supra, 11 Cal.5th at
pp. 529-530; see People v. Manzanilla, supra, 80 Cal.App.5th at
p. 912; People v. Mejia (2019) 36 Cal.App.5th 859, 866 [“[t]he key
to the statute is the mindset of the defendant . . . at the time the
plea was taken”].) “Also relevant are the defendant’s probability
of obtaining a more favorable outcome if he had rejected the plea,
as well as the difference between the bargained-for term and the
likely term if he were convicted at trial.” (Espinoza, supra,
14 Cal.5th at p. 320.)
We review rulings under section 1473.7 independently.
(Espinoza, supra, 14 Cal.5th at p. 319; Vivar, supra, 11 Cal.5th at
p. 524.) “‘[U]nder independent review, an appellate court
exercises its independent judgment to determine whether the
facts satisfy the rule of law.’ [Citation.] When courts engage in
independent review, they should be mindful that ‘“[i]ndependent
review is not the equivalent of de novo review . . . .”’ [Citation.]
An appellate court may not simply second-guess factual findings
that are based on the trial court’s own observations. . . . In
section 1473.7 proceedings, appellate courts should . . . give
particular deference to factual findings based on the trial court’s
personal observations of witnesses.” (Vivar, at pp. 527-528.)
“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.)
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2. Lucero Failed To Establish Prejudicial Error Affecting
His Ability To Understand the Immigration
Consequences of His Guilty Plea
A moving party, like Lucero, who pleaded guilty to a felony
must prove three elements to establish his or her entitlement to
relief under section 1473.7, subdivision (a)(1): (1) He or she was
not given accurate advice about the immigration consequences of
the plea. (2) As a result, he or she did not understand the actual
or potential immigration consequences of the decisions being
made. (3) If he or she had properly understood those
consequences, there is a reasonable probability he or she would
not have accepted the proposed plea agreement. Even if we were
to agree that Lucero established the first two elements, he failed
to present any evidence to support a finding in his favor on the
remaining one.
a. Were accurate advisements given?
Lucero argues on appeal (albeit without citation to
authority), and the Attorney General does not dispute, that his
conviction for violating Health and Safety Code section 11351
constituted an “aggravated felony” that had “no waivers and no
recourse under immigration law”—presumably meaning it had
specific, mandatory adverse immigration consequences.5 As
discussed, the plea form signed by Lucero informed him only that
his conviction “may” result in specified adverse immigration
consequences, echoing the language in Penal Code section 1016.5,
subdivision (a)—an inadequate advisement if the conviction will
result in mandatory deportation, permanent exclusion or denial
5 Nothing in the record indicated Lucero’s immigration
status either in 2003 when he entered his plea or in 2021 when
he filed his motion under section 1473.7.
9
of naturalization. (Vivar, supra, 11 Cal.5th at p. 521; People v.
Lopez, supra, 83 Cal.App.5th at p. 716.) However, the minute
order following the plea hearing stated Lucero had been orally
advised the conviction “will have the consequences of deportation,
exclusion from admission to the United States, or denial of
naturalization”; and the transcript of that hearing, available to
the court at the section 1473.7 hearing, indicated he was assisted
by a Spanish-language interpreter when the advisement was
given. Lucero does not contest the accuracy of that description of
the plea hearing.
That said, Lucero in his declaration in support of the
motion stated his plea attorney did not advise him of any
immigration consequences. (This stands in contrast to cases in
which defense counsel actually misadvised the client, as was
apparently true, for example, in People v. Manzanilla, supra,
80 Cal.App.5th at page 906 [“[c]ounsel’s advice was deficient for
lack of specificity despite clear law establishing that Manzanilla’s
removal was virtually certain”].) In court, however, Lucero
retreated somewhat from that unequivocal assertion, testifying
only that he did not remember counsel telling him about the
immigration consequences of his plea.
Although not expressly required by the language of
section 1473.7, evolving case law suggests the absence of specific,
independent immigration advice by defense counsel, even though
the defendant was told by the court or prosecutor of mandatory
immigration consequences when his or her plea was taken,
constitutes error, leaving only the question whether that error
was prejudicial. (See, e.g., People v. Manzanilla, supra,
80 Cal.App.5th at p. 906; People v. Lopez (2021) 66 Cal.App.5th
561, 577; see also People v. Patterson (2017) 2 Cal.5th 885, 896
10
[“[o]ne of the purposes of the [Penal Code] section 1016.5
advisement is to enable the defendant to seek advice from counsel
about the actual risk of adverse immigration consequences”].)
Accepting that as the correct interpretation of the statute—an
issue we need not decide in this case—Lucero’s declaration that
he received no immigration advice from his lawyer and his
testimony that he did not recall receiving any such advice would
appear to be sufficient to establish error, particularly since the
superior court made no finding adverse to Lucero on this point.
b. Did Lucero understand the advisements?
In Lucero’s motion to vacate his conviction under
section 1473.7 and the supporting legal memorandum, retained
counsel repeatedly stated Lucero did not meaningfully
understand the immigration consequences of his plea.
Significantly, however, in his 10-paragraph declaration,
presumably prepared with the assistance of counsel, Lucero did
not make a similar assertion. Moreover, when testifying at the
evidentiary hearing on the motion, Lucero never claimed he did
not understand the immigration consequences of entering a
guilty plea, even though the court at the outset of the hearing
stated he had been orally advised about those immigration effects
and the January 3, 2003 minute order stated that advice had
been that adverse immigration consequences were mandatory.
Unless we were to assume, which we are not prepared to do, that
the absence of advice by defense counsel necessarily means—
without any specific claim by the moving party or any other,
further showing—the defendant did not understand the court’s or
prosecutor’s advisement that the plea will result in mandatory
immigration consequences, Lucero has failed to prove by a
preponderance of the evidence this necessary element for relief
11
under section 1473.7, subdivision (a)(1). That is, exercising our
independent judgment, the facts do not satisfy the requirements
of the law. (See Vivar, supra, 11 Cal.5th at p. 527.)
c. Would Lucero have rejected the plea agreement had
he understood the immigration consequences?
After reviewing Lucero’s declaration and listening to his
testimony, the superior court found there was no credible
evidence Lucero would have rejected the plea agreement—
probation with 90 days of county jail time less 33 days of custody
credit rather than facing a possible four-year maximum state
prison sentence—if defense counsel had specifically advised him
of the mandatory adverse immigration consequences of the plea.
Indeed, there was no evidence at all on this point, credible or
otherwise. To reiterate, neither in his declaration nor in his
testimony did Lucero claim that immigration consequences were
a significant concern of his in 2003, let alone that he would not
have accepted the plea had he understood the effect his
conviction for violating Health and Safety Code section 11351
would have on his immigration status. On this record, giving
“particular deference to factual findings based on the trial court’s
personal observations of witnesses” as mandated by the Supreme
Court in Vivar, supra, 11 Cal.5th at pages 527 to 528, it would be
impossible to conclude Lucero carried his burden to prove
prejudicial error by a preponderance of the evidence.
Moreover, even if Lucero had made a claim of prejudice, he
fell far short of corroborating any such assertion with objective
evidence, as required by Espinoza and Vivar. (See Espinoza,
supra, 14 Cal.5th at p. 321 [“[a] defendant must provide
‘“objective evidence”’ to corroborate factual assertions”]; Vivar,
supra, 11 Cal.5th at p. 530 [“[w]hen a defendant seeks to
12
withdraw a plea based on inadequate advisement of immigration
consequences, we have long required the defendant corroborate
such assertions with ‘“objective evidence”’”]; cf. People v. Martinez
(2013) 57 Cal.4th 555, 565 [To be entitled to relief under Penal
Code section 1016.5, “the defendant must provide a declaration or
testimony stating that he or she would not have entered into the
plea bargain if properly advised. It is up to the trial court to
determine whether the defendant’s assertion is credible, and the
court may reject an assertion that is not supported by an
explanation or other corroborating circumstances”].)
In his declaration Lucero explained he emigrated from
Mexico in 1994 when he was 17 years old and stated, since that
time, he had always considered this country his home. However,
he provided no information about any ties to the United States
other than physical presence between 1994 and 2003 when he
entered his guilty plea and his work in this country as a
handyman and in construction. In particular, although Lucero
declared he married in 2013 and now has four children with his
wife, he identified no relatives or extended family members (or
even close friends) living in the United States in 2003, as, for
example, did Vivar, who presented evidence he came to the
United States when only six years old and, at the time of his
offense, had lived here for 40 years and had a wife, two children
(one then serving in the United States Air Force) and
two grandchildren, all of whom were citizens. (See Vivar, supra,
11 Cal.5th at p. 530.) Similarly, in support of his section 1473.7
motion Espinoza submitted evidence regarding his biographical
history and ties to the United States, which revealed at the time
of his plea he had lived in California for 23 years (he came to this
country when he was 13 years old); he was a lawful permanent
13
resident; his wife and five children were United States citizens;
and his parents and siblings lived in the United States.
(Espinoza, supra, 14 Cal.5th at p. 317; see id. at p. 322
[“Espinoza’s deep and long-standing ties are undisputed
and weigh in favor of finding that he would have considered
immigration consequences to be of paramount concern in deciding
whether to accept a plea agreement”]; see also People v.
Manzanilla, supra, 80 Cal.App.5th at p. 912 [“[A]t the time of his
plea, Manzanilla had been in the United States since 1965, when
he arrived as a four-year-old child, so had called the United
States home for approximately 55 years. He went to school and
started a family in California, and his family members, including
his United States citizen minor children, are in the United
States”]; People v. Diaz (2022) 76 Cal.App.5th 102, 115, review
granted June 15, 2022, S274129 [separating the defendant from
his mother and from the country where he had spent two-thirds
of his life were “compelling reasons” for him to wish to remain
legally in the United States].)
Nor did Lucero describe his family situation in, or
relationship to, Mexico, eschewing any suggestion he would be an
uncomfortable stranger in an unfamiliar country if he had to
leave the United States. (See People v. Lopez, supra,
83 Cal.App.5th at p. 714 [“[the] factors courts may consider in
determining the reasonable probability that the defendant would
have rejected the plea because of immigration consequences
include: the defendant’s remaining ties or lack thereof to his or
her home country”]; People v. Manzanilla, supra, 80 Cal.App.5th
at p. 912 [same]; cf. Vivar, supra, 11 Cal.5th at p. 530 [“Vivar had
virtually no ties to Mexico, spoke Spanish ‘like an American,’ and
14
found it ‘difficult to function in Mexican society because people
treat [him] like an outsider’”].)
As discussed, the record is also devoid of evidence that
immigration consequences were of any concern to Lucero in 2003
(and certainly not his primary concern) even though the written
and oral advisements alerted him to the potential immigration
issues that flowed from being arrested for possession of cocaine.
Lucero’s counsel argues a plea to simple possession of cocaine, an
immigration-neutral conviction, with diversion rather than jail
time, could have been pursued if Lucero had been properly
advised, but no evidence was offered in the superior court that
suggested such a plea was reasonably possible or would even
have been considered by the prosecutor.
In sum, viewing the totality of the circumstances, as
instructed by Vivar, even if Lucero did not receive proper
advisements, the superior court properly determined he failed to
present sufficient evidence to carry his burden of establishing a
reasonable probability he would not have entered into the plea
agreement if he had meaningfully understood the associated
adverse immigration consequences.
DISPOSITION
The postjudgment order denying Lucero’s section 1473.7
motion is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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