People v. Garcia CA2/6 ( 2021 )

Filed 1/4/21 P. v. Garcia CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303684
(Super. Ct. No. 1329359)
Plaintiff and Respondent, (Santa Barbara County)
v.
SALVADOR MUNOZ GARCIA,
Defendant and Appellant.
Salvador Munoz Garcia appeals from the trial court’s
denial of his motion to vacate his no contest plea to transporting
methamphetamine. (Pen. Code,1 § 1473.7; see Health & Saf.
Code, § 11379, subd. (a).) The grounds for Garcia’s appellate
challenge are not precisely clear. He appears to contend that: (1)
based on the terms of his plea, he is entitled to dismissal and
expungement of his conviction pursuant to Proposition 36 (Prop.
36; see § 1210 et seq.), and (2) he would not have accepted the
plea had counsel explained the difference between transporting
1 Unlabeled statutory references are to the Penal Code.
methamphetamine for personal use and transporting
methamphetamine for sales purposes. We disagree with both
contentions, and affirm.
FACTUAL AND PROCEDURAL HISTORY
During a December 2009 traffic stop, a sheriff’s
deputy found 10 baggies of methamphetamine on Garcia’s
person, and marijuana and a marijuana pipe in his car. Garcia
told the deputy that he did not use methamphetamine, but did
sell it to make money. He also said that he possessed the 10
baggies for sales purposes.
Prosecutors charged Garcia with transporting
methamphetamine, possessing methamphetamine for sale
(Health & Saf. Code, § 11378), and possessing marijuana while
driving (Veh. Code, § 23222, subd. (b)). Garcia pled no contest to
the transportation charge in exchange for the dismissal of the
two possession charges. He acknowledged that his plea would
have immigration consequences. He also said that his attorney
and interpreter went over his plea with him and that he
understood it. The trial court accepted Garcia’s plea, suspended
imposition of sentence, and ordered him to serve three years of
formal probation.
In 2019, Garcia moved to vacate his conviction
pursuant to section 1473.7. In his motion, Garcia claimed that
“[n]o one ever explained the difference . . . between
transportation for [the purpose of] sales and transportation for
personal use” to him, and that he was not advised that he would
have been entitled to Prop. 36 relief had “the jury [made] a
finding of ‘transportation for personal use.’” Had he been
properly advised, he would not have entered his plea but would
have instead proceeded to trial.
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Trial counsel submitted a declaration in support of
Garcia’s motion. Counsel asserted that he did not advise Garcia
that the jury would have had to find that Garcia transported
methamphetamine for the purpose of sales to convict him.
Counsel also asserted that Garcia consistently “maintained [that]
his possession was for personal use.”
Prosecutors opposed Garcia’s motion. They said that
they would not have agreed to a disposition that made Garcia
eligible for Prop. 36 probation, but would have instead added
non-drug-related misdemeanor charges had he proceeded to trial.
They also argued that Garcia failed to show prejudicial error, as
required by section 1473.7, because the evidence against him was
extremely strong and because the charge to which he pled had
more favorable immigration consequences than possession for
sale. Specifically, at the time he pled, any “trafficking offense”
was deemed an “aggravated felony” for immigration purposes, the
consequence of which was mandatory deportation. Trafficking
offenses included selling methamphetamine and possessing
methamphetamine for sale, but not transporting
methamphetamine for personal use. The latter offense permitted
limited exceptions to deportation.
The trial court denied Garcia’s motion. It concluded
that Garcia did not show that he would have been entitled to
Prop. 36 relief, nor did he show that he would have rejected the
plea bargain because it was a “huge benefit to him at the time.”
The least adjudicated elements of Garcia’s offense established
only that he transported methamphetamine, not that he
transported it for sales purposes, allowing him to argue in
immigration court that the drug was for personal use and was
thus not a trafficking offense. The court said that it was willing
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to issue an order clarifying that there was no admission or
finding that Garcia’s transportation was for sales purposes.
DISCUSSION
Prop. 36
When Garcia pled no contest to transporting
methamphetamine, Health and Safety Code section 11379,
subdivision (a), did not require that the transportation be for the
purpose of sales. (See People v. Glasper (2003) 113 Cal.App.4th
1104, 1115 (Glasper).) Garcia thus contends he was entitled to
the dismissal of his conviction pursuant to Prop. 36. (See People
v. Dove (2004) 124 Cal.App.4th 1, 7-11 [relief available where
transportation was for personal use].) But as the prosecutor
stated in the proceedings below, because there was strong
evidence that Garcia did, in fact, transport methamphetamine for
sales purposes, he would not have agreed to a disposition that
made Garcia eligible for Prop. 36 probation. (See § 1210.1, subd.
(b)(2) [conviction of non-drug-related misdemeanor renders
defendant ineligible for Prop. 36 relief].) Garcia has not
attempted to refute the prosecutor’s statement. He thus fails to
show that he was entitled to dismissal and expungement of his
conviction pursuant to Prop. 36.
Section 1473.7
Garcia next contends the trial court erred when it
denied his motion to vacate his plea because he would not have
pled no contest had counsel explained to him that, by doing so, he
was admitting that he transported methamphetamine for sales
purposes. But as the court explained during the proceedings
below, that was not the law when Garcia pled; the transportation
could also have been for personal use. (See Glasper, supra, 113
Cal.App.4th at p. 1115.) The court even offered to make a finding
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that Garcia never admitted to transporting methamphetamine
for sales purposes. The foundation on which Garcia bases his
contention thus lacks factual support in the record.
And even if there were support for it, we would
nevertheless reject it. “A person who is no longer in criminal
custody may file a motion to vacate a conviction [if] . . . [¶] [t]he
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 plea of guilty or nolo contendere.”
(§ 1473.7, subd. (a)(1).) The moving party has the burden of
showing, by a preponderance of the evidence, that they are
entitled to section 1473.7 relief. (Id., subd. (e)(1).) They may do
so by “‘convincing the [trial] court that [they] would have chosen
to lose the benefits of the plea bargain despite the possibility or
probability deportation would nonetheless follow.’” (People v.
Camacho (2019) 32 Cal.App.5th 998, 1010, alterations omitted.)
We review the decision on a section 1473.7 motion for abuse of
discretion. (People v. Rodriguez (2019) 38 Cal.App.5th 971, 977.)
The trial court did not abuse its discretion when it
denied Garcia’s section 1473.7 motion because he has not shown
that his decision to plead no contest to violating Health and
Safety Code section 11379, subdivision (a), was based on the
distinction between transporting methamphetamine for sales
purposes and transporting the drug for personal use. For
purposes of federal immigration law, transporting
methamphetamine for personal use is an offense involving a
“controlled substance,” while transporting methamphetamine for
sales purposes is an “aggravated felony.” (U.S. v. Navidad-
Marcos (9th Cir. 2004) 367 F.3d 903, 907-908.) A defendant
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convicted of either a felony involving a controlled substance or an
aggravated felony is deportable. (Hernandez-Aguilar v.
Holder (9th Cir. 2010) 594 F.3d 1069, 1073; see 8 U.S.C. §§
1227(a)(2)(A)(iii) [aggravated felony], 1227(a)(2)(B)(i) [controlled
substance felony].) But a defendant convicted of the former may
raise defenses to deportation—including asylum, cancellation of
removal, and voluntary departure—that are unavailable to a
defendant convicted of the latter. (8 U.S.C. §§ 1158(b)(2)(A)(ii),
1158(b)(2)(B)(i), 1229b(a)(3), 1229c(a)(1).)
Here, however, Garcia has not claimed that he had
any basis to raise one of the defenses to deportation. A conviction
for transporting methamphetamine for personal use thus carried
the same potential immigration consequences as a conviction for
transporting methamphetamine for sales purposes. Accordingly,
Garcia has suffered no prejudice based on any difference between
the two offenses.
DISPOSITION
The trial court’s order denying Garcia’s motion to
vacate his no contest plea, entered December 17, 2019, is
affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Brian Hill, Judge
Superior Court County of Santa Barbara
______________________________
Law Office of Alan G. Karow and Alan G. Karow for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and Chung L.
Mar, Deputy Attorneys General, for Plaintiff and Respondent.