People v. Parra CA2/6 ( 2021 )

Filed 8/6/21 P. v. Parra 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B309749
(Super. Ct. No. NA003695)
Plaintiff and Respondent, (Los Angeles County)
v.
JOEL QUINTANA PARRA,
Defendant and Appellant.
Joel Quintana Parra1 appeals from the postjudgment
order denying his motion to vacate his conviction. (Pen. Code,
§ 1473.7.) He contends the conviction was invalid due to
prejudicial error impairing his ability to understand the
immigration consequences of his guilty plea. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1
The record contains several variations of appellant’s
name, including Joel Parra Quintana, Joel Para Quintana, Joel
Parra, and Joel Quintana-Parra.
Guilty plea and sentence
In 1990, Quintana was charged with felony counts of
receiving stolen property (count 1, Pen. Code, § 496, former subd.
1) and forgery of a vehicle certificate of title (count 2, Pen. Code,
§ 470). Quintana pled guilty to forgery in exchange for felony
probation and one year in county jail. The court advised him: “If
by some chance you are not a citizen of this country, this
conviction could result in your being deported, your being denied
naturalization, your being denied the right to come back into the
country at a later time.” Quintana said he understood. The
minute order states, “Defendant advised of possible effects of plea
on any alien/citizenship/probation/parole status.”
The court placed Quintana on probation with terms
including 365 days in the county jail, with credit for 101 actual
days served and 50 days conduct credit. On motion of the People,
the court dismissed count 1.
In 1995, the court found Quintana in violation of
probation and sentenced him to 16 months in state prison, with
credit for 335 actual days served and 165 days conduct credit. He
received a concurrent prison sentence of 16 months for a 1995
felony conviction of petty theft with a prior (Pen. Code, § 666). In
2016, the section 666 conviction was reduced to a misdemeanor.
(Pen. Code, § 1170.18, subd. (g).)
Immigration proceedings
In 2012, Quintana was detained by Immigration and
Customs Enforcement (ICE). ICE sought his removal from the
country based on a 2010 conviction of possession of a firearm by a
felon. The basis for removal was then amended to substitute
conviction of forgery with a loss to the victim of $10,000 or more.
ICE again substituted its basis for seeking removal to a 2002
2
conviction for causing corporal injury to a spouse. Quintana
states that this is the offense for which he is facing removal.
Quintana sought discretionary relief of cancellation
of removal. (8 U.S.C. § 1229b(a), Immigration and Nationality
Act (INA) § 240A(a).) The immigration judge determined that
Quintana was not eligible for relief because his conviction for “an
offense relating to . . . forgery. . . for which the term of
imprisonment is at least one year” was an “aggravated felony.”
Motion to vacate
In 2020, Quintana filed a motion to vacate the forgery
conviction pursuant to Penal Code section 1473.7. He stated that
the 1988 theft conviction and the forgery conviction were crimes
of moral turpitude that subjected him to deportation. Because
the forgery sentence was a year or more, it was an aggravated
felony that subjected Quintana to mandatory deportation and
permanent exclusion from the country. It also made him
ineligible to apply for discretionary cancellation of removal to
remain in the country. The former public defender who
represented Quintana during the guilty plea did not remember
the case.
Quintana’s declaration
The motion to vacate was supported by a declaration
from Quintana, who stated as follows:
Quintana has been in the United States as a lawful
permanent resident since he was brought from Mexico at the age
of nine. His daughters, grandchildren, mother, and siblings are
United States citizens. He has been employed as a longshoreman
for 36 years. He is 62 years old, has health issues, does not speak
Spanish, has no knowledge of Mexico, and has no family there.
When he was arrested for forgery, he was told he
3
forged the title to a pick-up truck so a friend could sell it. He did
not remember if he signed the registration. Although the
signature was “somewhat different” from Quintana’s
handwriting, comparison by a handwriting analyst supported
Quintana’s guilt. His attorney told him no one would believe him
if he went to trial and he would face “the possibility of a higher
conviction rate and sentence.”
Quintana’s attorney “explained . . . that [he] would
not be deported or be denied [his] citizenship through
naturalization process.” He was “briefly told by [his] counsel of
immigration consequences, but that it didn’t apply to [him]
because [he] was a lawful permanent resident” from the time he
was a minor, and had never been detained by immigration for
prior arrests or convictions. His attorney did not otherwise
discuss immigration consequences or other possible pleas or
sentences and did not advise him to seek advice from an
immigration attorney.
Had he known of the immigration consequences, he
would not have pled guilty to forgery but would have sought an
“immigration-safe plea” or “taken [his] chances with trial.” He
decided to plead guilty when his attorney told him he would be
sentenced to 365 days in county jail, and with credit for time
served would either be released or serve at most an additional
month in custody.
Hearing and ruling
At the hearing on the motion to vacate his plea,
Quintana testified he had been arrested several times as a
juvenile and adult, but had no contact with ICE until 2012.
When he pled guilty, his attorney told him “[o]f the deportation or
something. Something like that.” His attorney told him the
4
immigration consequences “would be deportation and all that.
But it didn’t apply to me because I was legal. I was not illegal.”
When asked if he drew that conclusion or his attorney told him
that, Quintana responded, “I guess we both came to the
conclusion.”
His attorney never told him forgery was a moral
turpitude crime that would result in deportation. When asked if
receiving that advice would have affected his decision to plead
guilty, Quintana said he would still think not because he was
“legal.”
Quintana pled guilty because “they would have found
me guilty anyways” and “they already had the evidence of stuff
against me.” He “took the deal” because with his custody credits,
he was “basically going to get out of custody.”
The trial court denied the motion to vacate. The
court found that Quintana’s attorney told him he “could be
deported. That this was a deportable offense.” The court found
that counsel and the trial judge “did what [they were] supposed
to do” by advising that deportation was possible. But Quintana
“just didn’t think it applied” to him. The court did not “think
[Quintana] would have done anything differently.” He made a
“rational decision” to plead guilty to one of the two counts for
time served.
DISCUSSION
Penal Code section 1473.7
The trial court must vacate a conviction if the
defendant establishes by a preponderance of the evidence that:
(1) the conviction “is currently causing or has the potential to
cause removal or the denial of an application for an immigration
benefit,” (2) the conviction is “legally invalid due to . . . error
5
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,” and (3) the error was “prejudicial.” (Pen. Code,
§ 1473.7, subds. (a)(1), (e)(1).) The 2018 amendment to the
statute provides: “A finding of legal invalidity may, but need not,
include a finding of ineffective assistance of counsel.” (Pen. Code,
§ 1473.7, subd. (a)(1).)
In an appeal of the denial of a motion to vacate
pursuant to Penal Code section 1473.7, whether counsel’s advice
regarding immigration was inadequate and whether defendant
was prejudiced thereby are mixed questions of law and fact we
review independently. (People v. Vivar (2021) 11 Cal.5th 510, 524
(Vivar).) “‘[U]nder independent review, an appellate court
exercises its independent judgment to determine whether the
facts satisfy the rule of law.’” (Id. at p. 527.) We “accord[]
substantial weight to the trial court’s credibility findings.” (Id. at
p. 524.) We “may ‘“reach a different conclusion [from the trial
court] on an independent examination of the evidence . . . even
where the evidence is conflicting,”’” but we “give particular
deference to factual findings based on the trial court’s personal
observations of witnesses.” (Id. at pp. 527-528.)
Immigration consequences
Quintana has established that the forgery conviction
“is currently causing or has the potential to cause removal or the
denial of an application for an immigration benefit.” (Pen. Code,
§ 1473.7, subd. (e)(1).)
Since 1952, an alien shall be removed if he or she “is
convicted of two or more crimes involving moral turpitude, not
arising out of a single scheme of criminal misconduct.” (8 U.S.C.
6
§ 1227(a)(2)(A)(ii), INA § 237(a)(2)(A)(ii) [former § 241(a)(4)].)
Forgery and theft are crimes of moral turpitude. (Morasch v.
Immigration and Naturalization Service (9th Cir. 1966) 363 F.2d
30, 31.) Because Quintana had a 1988 conviction for petty theft,
his guilty plea to forgery in September 1990 constituted a second
moral turpitude conviction.2 During the immigration
proceedings, ICE changed course several times as to which of
Quintana’s convictions formed the basis for his removal. At the
time of his section 1473.7 motion, ICE was seeking to remove him
based on a 2002 domestic violence conviction (8 U.S.C.
§§ 1227(a)(2)(E)(i), 1229a, INA §§ 237(a)(2)(E)(i), 240), not two
moral turpitude convictions. But the forgery conviction, as one of
several moral turpitude crimes, could still result in his removal.
The forgery conviction has another immigration
consequence: it bars relief through cancellation of removal. The
Attorney General has the discretion to cancel removal of a
deportable alien who has been a lawful permanent resident for at
least five years, has resided in the United States continuously for
seven years, and has not been convicted of an aggravated felony.
(8 U.S.C. § 1229b(a), INA § 240A(a); Cruz-Camey v. Gonzales (1st
Cir. 2007) 504 F.3d 28, 29.) But an alien convicted of an
aggravated felony is ineligible for this discretionary relief.
(Moncrieffe v. Holder (2013) 569 U.S. 184, 187.) Forgery
resulting in a sentence of a year or more in custody is an
aggravated felony. (8 U.S.C. § 1101(a)(43)(R), INA
§ 101(a)(43)(R), as amended by Illegal Immigration Reform and
2
Quintana also has other moral turpitude convictions:
misdemeanor forgery in April 1990, and petty theft in 1977 and
1995.
7
Immigrant Responsibility Act of 1996 (IIRAIRA) § 321(a)(10).)
Ineffective assistance of counsel
Penal Code section 1473.7, subdivision (a)(1), was
amended in 2018 to provide that “even if the motion is based
upon errors by counsel, the moving party need not also establish
a Sixth Amendment violation as by demonstrating that ‘counsel’s
representation “fell below an objective standard of
reasonableness” . . . “under prevailing professional norms.”’”
(People v. Camacho (2019) 32 Cal.App.5th 998, 1008 (Camacho).)
The defendant is “required only to show that one or more of the
established errors were prejudicial and damaged his ‘ability to
meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of [his]
plea.’” (Id. at p. 1009.) Quintana has not shown that his counsel
erred.
At the time of his guilty plea, forgery with a sentence
of 365 days or 16 months was not an aggravated felony.3
3 Forgery with a possible term of imprisonment of five
years or more became an aggravated felony on April 24, 1996.
(8 U.S.C. § 1101(a)(43)(R), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) § 440(e)(8).)
Effective September 30, 1996, the definition of aggravated felony
was amended to include forgery for which a sentence of one year
or more was imposed. (8 U.S.C. § 1101(a)(43)(R), as amended by
IIRAIRA § 321(a)(10).) Quintana concedes the “365 [day] rule”
was not in effect at the time of the 1990 guilty plea. Nor was it in
effect when the court revoked Quintana’s probation and
sentenced him to 16 months in prison. The amendment is
retroactive—it applies “regardless of whether the conviction was
entered before, on, or after [September 30, 1996].” (8 U.S.C.
§ 1101(a)(43), final par., as amended by IIRAIRA § 321(b) & (c);
8
Counsel is not charged with foreknowledge of future legal
changes. (People v. Dennis (1998) 17 Cal.4th 468, 537.) Thus,
counsel could not have advised Quintana that his plea would
someday bar discretionary cancellation of removal.
The evidence supports the trial court’s conclusion
that Quintana’s counsel “did what he . . . was supposed to do.”
Although Quintana’s declaration stated that counsel told him he
“would not be deported,” his testimony was to the contrary—
counsel told him the immigration consequences “would be
deportation.” Counsel’s performance was therefore not deficient
because Quintana was adequately advised that his guilty plea
would result in deportation. (People v. Olvera (2018) 24
Cal.App.5th 1112, 1116-1117, abrogated in part by statute as
noted in Camacho, supra, 32 Cal.App.5th at pp. 1005-1006.)
This case is unlike Camacho. There, the judge
advised the defendant the conviction could lead to deportation,
but his attorney “told him everything would be fine.” (Camacho,
supra, 32 Cal.App.5th at p. 1001.) The attorney stated he would
seek to reduce the charge to a misdemeanor and expunge the
conviction, and incorrectly advised that this “would help with
defendant’s immigration consequences.” (Id. at pp. 1003, 1009.)
The Court of Appeal ordered the defendant’s plea vacated “due to
his and his counsel’s errors.” (Id. at p. 1009.) Similarly, in Lee v.
United States (2017) 582 U.S. ___, ___ [137 S.Ct. 1958, 1962, 198
L.Ed.2d 476] (Lee), “Lee’s attorney was wrong” when he told him
he would not be deported if he pled guilty; in fact, deportation
was mandatory. In contrast here, counsel did not give erroneous
Aragon-Ayon v. Immigration and Naturalization Service (9th Cir.
2000) 206 F.3d 847 [amendment is retroactive]; see Vartelas v.
Holder (2012) 566 U.S. 257, 267 [recognizing retroactive effect].)
9
advice.
Failure to understand immigration consequences
In Camacho, the court ordered the defendant’s plea
vacated based on his misunderstanding of immigration
consequences due to counsel’s error and “defendant’s own error.”
(Camacho, supra, 32 Cal.App.5th at p. 1009.) Two panels of the
Fourth District have taken this holding a step further and
concluded that the “error damaging the moving party’s ability to
meaningfully understand . . . potential adverse immigration
consequences” need not be an error of counsel or the court, but
may be defendant’s own error. (People v. Mejia (2019) 36
Cal.App.5th 859, 871-872; People v. Jung (2020) 59 Cal.App.5th
842, 846, disapproved on another point in Vivar, supra, 11
Cal.5th at p. 526, fn. 4.) Although Quintana was mistaken about
whether the immigration consequences applied to him, we need
not determine whether this is sufficient to establish “error”
pursuant to Penal Code section 1473.7 because he has not shown
prejudice.
Prejudice
“[S]howing prejudicial error under [Penal Code]
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, supra, 11 Cal.5th
at p. 529.) “The focus [is] on ‘what the defendant would have
done, not whether the defendant’s decision would have led to a
more favorable result.’” (Id. at pp. 528-529.) In making this
assessment, we consider the totality of the circumstances. (Id. at
p. 529.)
When the immigration consequences are “dire, even
10
the smallest chance of success at trial may look attractive” and
the defendant may “reject[] any plea leading to deportation in
favor of throwing a ‘Hail Mary’ at trial.” (Lee, supra, 582 U.S. at
p. ___ [137 S.Ct. at p. 1961].) But “a defendant facing such long
odds will rarely be able to show prejudice from accepting a guilty
plea that offers him a better resolution than would be likely after
trial. . . . Where a defendant has no plausible chance of an
acquittal at trial, it is highly likely that he will accept a plea if
the Government offers one.” (Id. at p. 1966.) That is what
Quintana did here.
“Courts should not upset a plea solely because of post
hoc assertions from a defendant about how he would have
pleaded but for his attorney’s deficiencies. Judges should instead
look to contemporaneous evidence to substantiate a defendant’s
expressed preferences.” (Lee, supra, 582 U.S. at p. ___ [137 S.Ct.
at p. 1967].) “‘[A] defendant’s self-serving statement—after trial,
conviction, and sentence—that with competent advice he or
she would have accepted [or rejected] a proffered plea bargain, is
insufficient in and of itself to sustain the defendant’s burden of
proof as to prejudice, and must be corroborated independently by
objective evidence.’” (People v. Bravo (2020) 58 Cal.App.5th 1161,
1171, disapproved on another point in Vivar, supra, 11 Cal.5th at
p. 526, fn. 4.)
In Lee, it was undisputed from the defendant’s
statements when he pled guilty that “‘deportation was the
determinative issue in Lee’s decision whether to accept the plea
deal.’” (Lee, supra, 582 U.S. at p. ___ [137 S.Ct. at pp. 1967-
1968].) The Supreme Court concluded that “[i]n the unusual
circumstances of this case,” Lee “adequately demonstrated a
reasonable probability that he would have rejected the plea had
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he known that it would lead to mandatory deportation.” (Id. at p.
1967.) Similarly in Vivar, “[t]rial counsel’s recollection and
contemporaneous notes reflect that Vivar was indeed concerned
about the [immigration] ‘consequences’ of his plea.” (Vivar,
supra, 11 Cal.5th at p. 530.) Vivar wrote letters to the court “at
or near the time of his plea” expressing concern about the effect
of his plea on his immigration status. (Id. at pp. 530-531.)
In contrast here, the trial court’s conclusion that
Quintana pled guilty in order to ensure his imminent release
from custody and dismissal of the other count finds support in the
evidence. Quintana “points to no contemporaneous evidence in
the record to independently corroborate the attestation in his
declaration.” (People v. Bravo, supra, 58 Cal.App.5th at p. 1172.)
The trial court properly denied the motion to vacate the guilty
plea because Quintana did not corroborate his claim that he
would have gone to trial if he understood the immigration
consequences.
DISPOSITION
The order (denying the motion to vacate the
conviction) is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J. YEGAN, J.
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Laura L. Laesecke, Judge
Superior Court County of Los Angeles
______________________________
Andres Bustamante for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Paul M. Roadarmel, Jr. and Steven
D. Matthews, Deputy Attorneys General, for Plaintiff and
Respondent.