People v. Cardona CA2/7 ( 2023 )

Filed 7/26/23 P. v. Cardona CA2/7
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, B308787
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA087926)
v.
CARLOS PEREZ CARDONA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lee W. Tsao, Judge. Affirmed.
Richard Lennon, Pilar M. Escontrias and Anna Rea, 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, Paul M. Roadarmel, Jr., Steven D.
Matthews and Noah P. Hill, Deputy Attorneys General, for
Plaintiff and Respondent.
_________________
Carlos Perez Cardona appeals from the trial court’s order
denying his motion under Penal Code1 section 1473.7 to vacate
his 2005 conviction of corporal injury to a spouse, cohabitant, or
child’s parent. Cardona, who at the time of his motion faced
mandatory deportation to Mexico, argues on appeal that he did
not meaningfully understand the immigration consequences of
his guilty plea and his attorney failed to negotiate an
immigration-safe disposition that would have allowed him to
avoid deportation. In our prior opinion, we rejected both
arguments and affirmed. (People v. Cardona (May 25, 2022,
B308787 [nonpub. opn.].) (Cardona I.)
After granting Cardona’s petition for review, the Supreme
Court transferred the case to us with directions to vacate our
prior decision and reconsider Cardona’s appeal in light of People
v. Espinoza (2023) 14 Cal.5th 311 (Espinoza). In his
supplemental briefing, Cardona contends his case is similar to
Espinoza and there is “significant evidence” he would have
rejected the plea offer had he understood the immigration
consequences. However, Cardona has not shown he did not
meaningfully understand the immigration consequences of his
plea. Therefore, we do not reach the second step of the analysis
under Espinoza—whether any misunderstanding as to the
consequences of the plea constituted prejudicial error. (Id. at
p. 319.) We affirm.
1 Further undesignated statutory references are to the Penal
Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Cardona’s Plea and Conviction of Corporal Injury to a
Spouse, Cohabitant, or Child’s Parent
The probation report indicated that in March 2005 Cardona
was living with his ex-wife, Anna B., and their son. On the
evening of March 12 Cardona and Anna got into a verbal
argument. After Anna returned to her bedroom and shut the
door, Cardona entered the room and pushed Anna to the floor.
As she was lying on the floor, Cardona placed his knees on Anna’s
arms and began twisting the skin around her right arm.
Cardona then grabbed Anna’s arm and bit her left thumb.
Cardona got up, went back into the living room, and fell asleep on
a chair.
Cardona was charged in a felony complaint with one count
of corporal injury to a spouse, cohabitant, or child’s parent.
(§ 273.5, subd. (a).) The complaint alleged further that Cardona
was convicted on April 5, 2000 of misdemeanor corporal injury
under section 273.5, subdivision (a).
On March 25, 2005 Cardona, represented by Mark A.
Disabatino, pleaded guilty to corporal injury to a spouse,
cohabitant, or child’s parent. Prior to entering his plea, Cardona
signed a felony advisement of rights, waiver, and plea form (Tahl
waiver).2 The Tahl waiver stated the proposed disposition was a
2 See In re Tahl (1969) 1 Cal.3d 122, 132 (Tahl). “In Tahl . . .
this court explained that, in light of [Boykin v. Alabama (1969)
395 U.S. 238], ‘each of the three rights mentioned—self-
incrimination, confrontation, and jury trial—must be specifically
and expressly enumerated for the benefit of and waived by the
accused prior to acceptance of his guilty plea.’” (People v. Allen
(1999) 21 Cal.4th 424, 434-435.)
3
sentence of five years’ felony probation, 91 days in county jail,
entry of a stay-away order from Anna, completion of 52 domestic
violence counseling sessions and 240 hours of Caltrans service,
and payment of a restitution fine. Cardona initialed the box
stating, “[I]f I am not a citizen of the United States, I must expect
my plea of guilty or no contest will result in my deportation,
exclusion from admission or reentry to the United States and
denial of naturalization and amnesty.” He also signed the form
under the statement, “I have read and initialed each of the
paragraphs above and discussed them with my attorney. My
initials mean that I have read, understand and agree with what
is stated in the paragraph.” Disabatino signed the waiver form
under the statement, “I have reviewed this form with my client. I
have explained each of the defendant’s rights to the defendant
and answered all his . . . questions with regard to those rights
and this plea . . . and the consequences of the plea.” The
interpreter also signed the waiver form and stated he “truly
translated this form to the defendant” and “[t]he defendant
stated that he or she understood the contents on the form, and
then initialed and signed the form.”
At the plea hearing, the prosecutor orally advised Cardona
of the charge against him and prior conviction allegation, the
maximum penalty he faced, and the terms of the proposed
disposition. Cardona confirmed he understood the proposed
disposition. The court asked Cardona with respect to the Tahl
waiver whether he went “over it with [his] attorney, sign[ed] the
last page, and initial[ed] all the boxes to show [he] understood the
entire document.” Cardona responded, “Yes.”
Cardona entered a plea of guilty and admitted the prior
conviction allegation was true. The trial court signed the Tahl
waiver, which stated on the preprinted form that the court found
4
the plea was “freely and voluntarily made with an understanding
of the nature and consequences thereof.” On May 2, 2005 the
court suspended imposition of sentence and placed Cardona on
five years’ formal probation with the conditions set forth in the
negotiated plea agreement.3
B. Cardona’s Motion To Vacate His Conviction
On January 17, 2020 Cardona filed a motion to vacate his
2005 conviction under section 1473.7, subdivision (a)(1).
According to Cardona, when he pleaded guilty to a violation of
section 273.5, subdivision (a), he “was not aware that any adverse
immigration consequences would or could result from the
conviction.” (Capitalization omitted.) Cardona averred further,
“My attorney failed to disclose to me that a conviction of Penal
Code §273.5(A) could result in my deportation or exclusion from
the United States,” and “at no moment was I notified or made
aware that the conviction had negative immigration implications
or consequences.” (Capitalization omitted.) Moreover, had he
been aware of the adverse immigration consequences, he “would
not have pled on the charges, as [he] would be at risk of losing
[his] son, friends, acquaintances and employment,” and he
“[w]ould have sought an alternative plea, even if it meant serving
a longer jail sentence or a higher fine.” (Capitalization omitted.)
Cardona argued in his motion that in light of his circumstances,
“[i]t would have been entirely rational” for him to reject any plea
offer that did not allow him to stay in the United States and he
3 The May 2, 2005 transcript was destroyed by the court
reporter pursuant to Government Code section 69955,
subdivision (e).
5
was prejudiced because he would not have entered into the plea
had he known he would be deported.4
Cardona was represented by new counsel at the October 22,
2020 hearing on his motion to vacate. Cardona testified he was
taken into custody at the time of his March 12, 2005 arrest, and
he was still in custody at the time he was sentenced after
entering his guilty plea. Disabatino reviewed the proposed plea
with Cardona with the assistance of a Spanish language
interpreter. When asked whether Disabatino discussed the
immigration consequences of the plea with him, Cardona
answered, “It could be possible. . . . But I don’t remember.”
Cardona added that had he discussed the immigration
consequences with his attorney, he would have remembered.
Further, if he had known the consequences, he would not have
pleaded guilty. Cardona acknowledged he entered a plea of no
contest to misdemeanor domestic violence in 1996 and to corporal
injury to spouse, cohabitant, or child’s parent in 2000, but he was
not aware of the immigration consequences of either plea.5 When
asked whether the trial court advised him in 1996 and 2000 of
the immigration consequences, Cardona responded, “I really
don’t. Possibly he did tell me, but I don’t remember.”
On cross-examination, Cardona testified that at the time of
the plea he wanted to get out of custody as soon as possible,
explaining, “I wanted to get out quickly because of my concern
4 In his motion to vacate (but not his declaration), Cardona
asserted he first learned of the immigration consequences when
he consulted an immigration attorney in 2015 to obtain
permanent legal residency in the United States.
5 Cardona did not seek to vacate his 1996 or 2000
misdemeanor convictions.
6
that I had custody of my baby. I had him until that date, and
that was the biggest thing I had. . . . My biggest fear was with
the mother because the mother was taking psychiatric medicine.
My worry was only to get out.” Cardona acknowledged he
expressed to his attorney that he wanted to get out of custody to
be with his child (who was then six years old). Cardona was
hoping his attorney would obtain a disposition under which he
would not need to go to prison for a long time. But he also
testified he would have taken more time in custody instead of
being deported. At the time of the hearing on his motion to
vacate, Cardona’s son was in the Army based in Texas.
Cardona acknowledged he initialed and signed the Tahl
waiver, but he added, “[Disabatino] just told me ‘put your initials’
and that’s all, but I never got to read it nor did he read it to me in
detail, what it said.” Cardona was “sure” the interpreter did not
read the immigration advisement portion of the Tahl waiver to
him. Cardona recalled being advised at the time of his plea of his
right to a jury trial, the consequences of a violation of probation
or parole, and that his felony conviction could enhance the
sentence for a future conviction, but as to whether he was
advised of the immigration consequences, Cardona stated, “I
don’t remember.”
The People called Disabatino, who testified that with the
assistance of a Spanish-language interpreter, he read the entire
form to Cardona, including the immigration advisement.6
Disabatino read the advisement “exactly word for word”; Cardona
6 The trial court found Cardona waived the attorney-client
privilege by arguing in his motion to vacate that he did not
understand the immigration consequences of his plea.
7
had no questions for him; and Cardona initialed the box next to
the immigration advisement after Disabatino read the
advisement to him. Cardona told Disabatino his main concern
was to “get out soon” because his ex-wife “had serious mental
issues” and “he needed to get out and take care of his six-year-old
who he claimed he had full custody of.”
After hearing counsel’s argument, the trial court denied
Cardona’s motion. The court explained, “[W]e have [Cardona]
denying in a blanket fashion that he knew of the immigration
consequences at the time that he entered his plea in 2005;
However, . . . all the other testimony and evidence in this case
indicates otherwise. . . . [¶] . . . He filled out a Tahl waiver . . .
in which he put his initials next to the paragraph that he will be
deported. . . . An interpreter . . . signed the last page of that
document indicating that the interpreter interpreted the contents
of that form. . . . [¶] Mr. Disabatino indicated that he had went
over that section of the Tahl waiver . . . advising [Cardona] that
he will be deported. . . . [¶] He was advised by the court during
the plea that he will be deported. He was asked if he understood
the potential consequences, and he said, ‘Yes.’ . . . [¶] There is
simply no . . . contemporaneous evidence that corroborates
[Cardona’s] assertions here. [¶] . . . [¶] And what appears to me
to have happened is that, by your own testimony here, you were
primarily interested in getting home to your family, and rightly
so, but that doesn’t mean that you did not know the immigration
consequences. . . . [¶] I believe that you were advised of the
immigration consequences; you knew them, but you took the plea
anyway in order to get home to your family. And that’s perfectly
understandable and it’s unfortunate that you find yourself in this
position today, many years later, but under the law, you have not
established by a preponderance of the evidence that you did not
8
meaningfully understand the consequences of your plea, and the
motion is denied.”
Cardona timely appealed.
DISCUSSION
A. Governing Law and Standard of Review
Section 1473.7, subdivision (a)(1), “allows noncitizens who
have served their sentence to vacate a conviction if they can
establish by a preponderance of the evidence that their conviction
is ‘legally invalid due to prejudicial error damaging [their] ability
to meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of a
conviction or sentence.’”7 (Espinoza, supra, 14 Cal.5th at p. 316;
accord, People v. Rodriguez (2021) 68 Cal.App.5th 301, 305, 308,
310; People v. Rodriguez (2021) 60 Cal.App.5th 995, 1002.) “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); see § 1473.7, subd. (e)(1) [“The
7 Assembly Bill No. 1259 (2021-2022 Reg. Sess.) amended
section 1473.7, subdivision (a)(1), effective January 1, 2022, to
expand relief to include vacation of a sentence. (Stats. 2021,
ch. 420, § 1.) The amended section provides as to the basis for a
motion to vacate, “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
conviction or sentence.” (Italics added.) The amendment is not at
issue here.
9
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).”].)
“To prevail under section 1473.7 . . . [t]he defendant must
first show that he did not meaningfully understand the
immigration consequences of his plea. Next, the defendant must
show that his misunderstanding constituted prejudicial error.”
(Espinoza, supra, 14 Cal.5th at p. 319.) “[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, supra,
11 Cal.5th at p. 529; accord, Espinoza, at p. 316; People v.
Rodriguez, supra, 60 Cal.App.5th at p. 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.”].) Any claim of
prejudicial error must be supported with objective evidence.
(Espinoza, at p. 321; accord, Vivar, at p. 530 [“[W]e have long
required the defendant corroborate such assertions with
“‘objective evidence.’””].) “Objective evidence includes facts
provided by declarations, contemporaneous documentation of the
defendant’s immigration concerns or interactions with counsel,
and evidence of the charges the defendant faced.” (Espinoza, at
p. 321.)
We independently review the trial court’s ruling on a
section 1473.7 motion. (Vivar, supra, 11 Cal.5th at p. 52; People
v. Lopez (2021) 66 Cal.App.5th 561, 574 [“a motion to withdraw a
10
plea under section 1473.7 is reviewed independently rather than
for abuse of discretion”].) “‘[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; accord, Espinoza, supra, 14 Cal.5th at
pp. 319-320; People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76
[on independent review, “[w]e accord deference to the trial court’s
factual determinations if supported by substantial evidence in
the record, but exercise our independent judgment in deciding
whether the facts demonstrate trial counsel’s deficient
performance and resulting prejudice to the defendant”].)
However, where the trial court does not conduct an evidentiary
hearing, “there is no basis for deference.” (Espinoza, at p. 320.)
Rather, “‘it is for the appellate court to decide, based on its
independent judgment, whether the facts establish prejudice
under section 1473.7.’” (Ibid; accord, Vivar, at p. 528.)
B. Cardona Failed To Meet His Burden To Show an Error
Damaging His Ability To Meaningfully Understand the
Immigration Consequences of His Plea
On appeal, we review whether Cardona met his burden to
establish “he did not meaningfully understand the immigration
consequences of his plea.” (Espinoza, supra, 14 Cal.5th at p. 319;
accord, Vivar, supra, 11 Cal.5th at p. 529.) “[T]he focus of the
11
inquiry in a section 1473.7 motion is on the ‘defendant’s own error
in . . . not knowing that his plea would subject him to mandatory
deportation and permanent exclusion from the United States.’”
(People v. Mejia (2019) 36 Cal.App.5th 859, 871.) Cardona did
not meet his burden.
In Espinoza, supra, 14 Cal.5th at page 320 the Supreme
Court concluded the defendant (Espinoza) did not meaningfully
understand the immigration consequences of his plea agreement
because the trial court only provided a “general advisement
under section 1016.5 that his conviction may have immigration
consequences,” and Espinoza’s attorney did not advise Espinoza
that pleading no contest to the charges would result in
deportation. (See People v. Alatorre (2021) 70 Cal.App.5th 747,
770 [“There is little in the record to establish Alatorre’s priorities
in discussing a plea deal with his defense counsel, and indeed,
part of his claim is that he spoke infrequently with his defense
attorney and that another attorney actually communicated the
prosecutor’s offer to him”].)
Here, by contrast, Disabatino testified at the evidentiary
hearing that he read the immigration advisement on the Tahl
waiver “word for word” to Cardona, and Cardona had no
questions for him. The advisement on the Tahl waiver informed
Cardona he “must expect” his plea “will result in my deportation,
exclusion from admission or reentry to the United States, and
denial of naturalization and amnesty.” (See Vivar, supra,
11 Cal.5th at p. 521 [“To warn merely ‘“that his plea might have
immigration consequences,”’ in circumstances where the
consequences were ‘certain,’ was ‘constitutionally
deficient’”]; People v. Superior Court (Zamudio) (2000)
23 Cal.4th 183, 204 [“advising a defendant that a no contest plea
may in the abstract have immigration consequences, cannot be
12
taken as placing him on notice that, owing to his particular
circumstances, he faces an actual risk of suffering such”].) The
interpreter signed the Tahl waiver form where it stated he had
translated the form for Cardona, and Disabatino confirmed the
interpreter assisted him in reading the entire form to Cardona.
Cardona initialed the box next to the immigration advisement
that stated his plea “will” result in his deportation. When the
court at the plea hearing inquired of Cardona whether he
reviewed the Tahl waiver with his attorney and “understood the
entire document,” Cardona responded in the affirmative.
Moreover, the prosecutor orally advised Cardona of the
immigration consequences of his plea, and Cardona
acknowledged he understood the consequences and had no
questions. In her advisement, the prosecutor also advised
Cardona that if he was not a citizen of the United States, his plea
“will” cause him to be deported and suffer other adverse
immigration consequences. This is in stark contrast to Espinoza,
in which the defendant’s attorney failed to advise him of the
immigration consequences and “the court made no further
inquiry into Espinoza’s understanding or offer to answer any
questions he might have had.” (Espinoza, supra, 14 Cal.5th at
p. 318.)
The Espinoza court further observed that following his plea
agreement, Espinoza started his own business, became an active
member of the community, and knowingly subjected himself to
the scrutiny of immigration officials, which conduct was
inconsistent “with the behavior of a person who understood that
his convictions effectively ended his lawful resident status.”
(Espinoza, supra, 14 Cal.5th at p. 318; see People v. Alatorre,
supra, 70 Cal.App.5th at p. 770 [“It goes without saying that
someone who understood his criminal conviction made him
13
automatically deportable would not voluntarily contact
immigration authorities and advise them of his presence in the
country”].) Unlike Espinoza, Cardona did not state in his
declaration or present any evidence at the hearing that he
became an active member of the community, sought to become a
lawful permanent resident, or otherwise acted consistent with an
understanding that he was not subject to deportation.
We agree with the trial court that Cardona’s conclusory
assertion that he did not meaningfully understand the
immigration consequences of his plea does not meet his burden.8
Although Cardona testified he did not remember being advised of
the immigration consequences and would not have pleaded guilty
had he known, the trial court did not find Cardona’s account
credible, relying on Disabatino’s testimony, the interpreter’s
attestation that the Tahl waiver was interpreted for Cardona,
and the in-court immigration advisement. Further, the court
found Cardona was “primarily interested in getting home to [his]
family” and knew of the consequences but “took the plea anyway
in order to get home to [his] family.” This finding was supported
by Cardona’s testimony that he was eager to be released to be
with his six-year-old son who was in his custody, which
Disabatino confirmed was Cardona’s main concern. We defer to
the court’s credibility findings, which it made after hearing the
testimony of Cardona and Disabatino. (Espinoza, supra,
8 It is undisputed Cardona’s conviction under section 273.5,
subdivision (a), made him deportable. (See People v. Bravo (2021)
69 Cal.App.5th 1063, 1073 [“A conviction under section 273.5 is
an aggravated felony for the purpose of the federal Immigration
and Nationality Act . . . . One convicted of an aggravated felony
is presumptively deportable.”].)
14
14 Cal.5th at p. 320 [“[w]hen courts engage in independent
review, they must give deference to the trial court’s factual
determinations”]; Vivar, supra, 11 Cal.5th at pp. 527-528 [same];
People v. Martinez (2013) 57 Cal.4th 555, 565 [“[i]t is up to the
trial court to determine whether the defendant’s assertion is
credible”].)
Cardona relies on People v. Patterson (2017) 2 Cal.5th 885in arguing the trial court should have granted the motion to
vacate because Disabatino failed to provide Cardona any
immigration advice beyond the advisement in the Tahl waiver.
In Patterson, however, the Supreme Court held the immigration
advisement did not bar the defendant’s motion to withdraw his
guilty plea based on his mistake as to the immigration
consequences because the court’s advisement only provided the
plea “‘may’” have adverse immigration consequences. (Id. at
pp. 895-896.) Here, the written advisement in the Tahl waiver
(as well as the prosecutor’s oral advisement) advised Cardona
that his plea of guilty or no contest “will” result in his deportation
and other adverse immigration consequences. Thus, although
the advisements were not tailored to Cardona’s case, they placed
Cardona on notice that he faced deportation and other
consequences if he entered a guilty plea.
15
DISPOSITION
The order denying Cardona’s motion to vacate his
conviction is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
16