People v. Garcia CA2/6 ( 2023 )

Filed 6/29/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B320969
(Super. Ct. No. MA079161)
Plaintiff and Respondent, (Los Angeles County)
v.
CLAUDIO GARCIA,
Defendant and Appellant.
Claudio Garcia appeals a post-judgment order denying his
motion to withdraw his nolo contendere plea. (Pen. Code,
§ 1018.)1 We conclude Garcia did not establish good cause to
withdraw his plea and affirm.
This appeal concerns Garcia’s nolo contendere plea to two
counts of commission of a lewd act upon a child under 14 years of
age. (§ 288, subd. (a).) The trial court suspended execution of
sentence and placed Garcia on five years of formal probation.
Approximately five months later, Garcia moved to withdraw his
1 All statutory references are to the Penal Code.
plea, asserting that he did not understand or was unaware of the
immigration consequences of his plea. Following an evidentiary
hearing, the trial court denied Garcia’s motion.
FACTUAL AND PROCEDURAL HISTORY
On September 1, 2019, the Los Angeles District Attorney
filed a felony complaint against Garcia, alleging three counts of
commission of a lewd act upon a child under 14 years of age.
(§ 288, subd. (a).) The criminal offenses concerned the sexual
touching of two girls (11 and 12 years old respectively) during
sleepovers and a family birthday party at Garcia’s residence.
Each criminal offense was punishable by three, six, or eight
years’ imprisonment.
On September 2, 2021, Garcia’s attorney, Robert Hankoff,
informed Garcia that he had negotiated a plea agreement that
did not involve any jail or prison confinement. That evening,
Hankoff e-mailed Garcia the terms of the plea agreement.
On September 3, 2021, Garcia completed a written plea
form that included a section entitled “Immigration
Consequences.” Garcia initialed the subsection stating: “I
understand that if I am not a citizen of the United States, my
plea of guilty or no contest may result in my deportation,
exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States.” (See,
§ 1016.5, subd. (a).)
On September 3, 2021, Garcia pled nolo contendere to two
of the three felony counts. During the plea colloquy, the trial
judge stated: “If you are not a citizen of the United States, your
plea will result in your deportation, exclusion from admission to
the United States and denial of naturalization.” (Italics added.)
Following an explanation of the other consequences of his plea,
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the judge asked Garcia if he had “any questions about anything
[she] just explained” and whether Garcia understood the
consequences of his plea. Garcia personally responded that he
had no questions and understood the consequences of the plea.
Among other findings, the trial court then found that Garcia’s
plea was “freely and voluntarily made with an understanding of
the nature and the consequences thereof . . . .”
Pursuant to the plea agreement, the trial court sentenced
Garcia to five years’ imprisonment but suspended execution of
sentence and placed him on formal probation for five years with
terms and conditions. On February 8, 2022, the United States
Immigration and Customs Enforcement detained Garcia.
On March 9, 2022, and April 21, 2022, Garcia moved to
withdraw his plea and vacate his sentence pursuant to sections
1018 and 1473.7. Garcia submitted declarations in support of his
motion and later testified at an evidentiary hearing. The trial
court took judicial notice of Garcia’s written plea agreement and
the transcript of the plea proceedings.
In his supporting declarations, Garcia declared that he had
questions regarding the effect of the plea upon his immigration
status but that Hankoff could not answer the immigration
questions. Hankoff responded that Garcia should seek legal
advice from an immigration attorney. Garcia had no time to
consult an immigration attorney, however, because he was
scheduled to enter the plea the following morning. Garcia
declared that Hankoff never explained to him that he would be
immediately deported if he accepted the plea agreement. Garcia
stated that he would not have entered a plea if he had understood
that he “would be imminently deportable.” In the morning of the
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plea proceeding, Hankoff reminded Garcia that he was receiving
a “great no custody deal.”
At the evidentiary hearing, Garcia repeated that Hankoff
did not explain that he would be deported due to the plea. Garcia
stated that he “had no idea” that he would be deported. He
admitted that a previous attorney warned him about possible
immigration consequences, but claimed that “[d]eportation was
always off the table.” Garcia testified that his previous attorney
offered to negotiate a disposition that would preclude
deportation.
During cross-examination, Garcia admitted that Hankoff
texted him prior to the plea proceeding and warned that there
were immigration consequences to the plea: “As you know, this
conviction will very likely [a]ffect and impact your immigration
status in the United States. We are not immigration attorneys
and I would encourage you to speak with an immigration
attorney regarding this matter.” Garcia testified that he did not
speak to an immigration attorney and did not know that he
would be deported.
Garcia also testified that Hankoff informed him that he
(Hankoff) would consult an immigration attorney on Garcia’s
behalf, but did not do so. Garcia stated that despite the trial
court’s admonition, he believed he “had time” to contest
deportation and was relying upon his attorney.
Following Garcia’s testimony, the trial court denied his
motion to withdraw his plea pursuant to section 1018. In ruling,
the court relied upon the lack of “credible” evidence that counsel
misadvised Garcia or informed him that he would not be
deported. The court concluded: “[T]here is no indication . . . that
[Garcia] was misadvised or not advised about the immigration
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consequences – in fact, the evidence shows that he was
specifically advised of the deportation by the court – but also,
there is no indication, other than statements by [Garcia] that the
court doesn’t find credible, that he wouldn’t have plead[ed] had
he known of these consequences.” The court also noted that
Garcia had approximately one year from his arraignment until
the plea proceeding to seek advice regarding his immigration
status. The court also commented that Garcia received “an
exceptionally favorable disposition.”
`` The trial court also denied Garcia’s motion pursuant to
section 1473.7, concluding that the statute was inapplicable
because Garcia, a probationer, remained in constructive custody.
(Id., subd. (a).)
Garcia requested and obtained a certificate of probable
cause to appeal the trial court’s denial of his motion.
DISCUSSION
Garcia argues that the trial court abused its discretion by
denying his plea withdrawal motion.
Section 1018 permits a defendant to move to withdraw a
plea for good cause at any time before judgment is entered. A
defendant has the burden of demonstrating good cause by clear
and convincing evidence. (People v. Cruz (1974) 12 Cal.3d 562,
566 [generally defendant must show by clear and convincing
evidence that the plea was the result of mistake, ignorance, or
any other factor overcoming exercise of free judgment].) A
defendant must further show prejudice in that he “would not
have accepted the plea bargain had it not been for the mistake.”
(People v. Breslin (2012) 205 Cal.App.4th 1409, 1416.) The focus
of a section 1018 inquiry is “what the defendant knew when
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entering the plea.” (People v. Patterson (2017) 2 Cal.5th 885,
897.)
A trial court’s decision to grant or deny a motion to
withdraw a plea pursuant to section 1018 is reviewed for an
abuse of discretion. (People v. Patterson, supra, 2 Cal.5th 885,
894; People v. Nocelotl (2012) 211 Cal.App.4th 1091, 1096-1097
[trial court’s decision may not be arbitrary, whimsical, or
capricious]; cf. People v. Vivar (2021) 11 Cal.5th 510, 528
[independent review standard applies to “someone seeking to
withdraw a plea under section 1473.7” for adverse immigration
consequences].) We are bound by the trial court’s factual findings
that are supported by sufficient evidence. (People v. Fairbank
(1997) 16 Cal.4th 1223, 1254.)
The trial court denied Garcia’s motion to withdraw his plea
because he did not establish good cause by clear and convincing
evidence. The trial court informed Garcia that by virtue of his
plea, he would be deported. Garcia stated that he understood
and did not have any questions for the court. The written
disposition statement also informed Garcia that he might be
deported and his attorney advised him that his immigration
status would likely be affected. Garcia did not request additional
time from the court to consider the effect of his plea upon his
immigration status. (§ 1016.5, subd. (b) [“Upon request, the court
shall allow the defendant additional time to consider the
appropriateness of the plea in light of the advisement”].) The
court also expressly found Garcia’s statement that he was not
advised or misadvised or that he would not have entered the plea
agreement if he had known of the immigration consequences to
be not credible.
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Ineffective Assistance of Counsel
Garcia also contends that his attorney did not adequately
research and advise him of the immigration consequences of his
plea. For this reason, he asserts that he received the ineffective
assistance of counsel. (United States v. Rodriguez-Vega (9th Cir.
2015) 797 F.3d 781, 786 [counsel required to advise defendant
that a section 288, subdivision (a), conviction renders removal
virtually certain]; United States v. Bonilla (9th Cir. 2011) 637
F.3d 980, 984 [same].)
To prevail, Garcia must demonstrate that 1) counsel’s
representation fell below an objective standard of reasonableness,
as judged by prevailing professional norms; and 2) but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. (Strickland v. Washington (1984) 466
U.S. 668, 688, 694.) In other words, Garcia must establish “a
reasonable probability exists that, but for counsel’s incompetence,
he would not have pled guilty and would have insisted, instead,
on proceeding to trial.” (In re Resendiz (2001) 25 Cal.4th 230,
253, abrogated in part on other grounds by Padilla v. Kentucky
(2010) 559 U.S. 356, 370.)
Garcia’s counsel advised Garcia by text that his plea would
“very likely [a]ffect and impact [his] immigration status,” and
that he should seek advice from an immigration attorney.
Although counsel did not advise that deportation was virtually
certain, he did advise that it was “very likely” and that Garcia
should obtain expert immigration advice. Moreover, the trial
court advised Garcia that he would be deported by virtue of his
plea. Garcia cannot establish ignorance of the immigration
consequences of his plea.
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Garcia also cannot establish that but for counsel’s asserted
incompetence, he would not have entered a plea agreement.
Garcia does not identify any alternate immigration-neutral
disposition that his attorney could have negotiated on his behalf
and to which the prosecutor would have agreed. The charged
sexual offenses prescribed lengthy sentences and his victims’
statements at sentencing reflect their interest in holding Garcia
accountable. There is no reasonable probability that Garcia
would have insisted on proceeding to trial. (In re Resendiz,
supra, 25 Cal.4th 230, 253 [disparity between terms of plea
agreement and probable penalty consequences of conviction after
trial is one factor in deciding plea withdrawal motion].)
DISPOSITION
The order denying Garcia’s motion to withdraw his plea is
affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
BALTODANO, J.
CODY, J.
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Kathleen Blanchard, Judge
Superior Court County of Los Angeles
______________________________
Sabrina R. Damast, 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, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
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