People v. Robles CA4/1 ( 2024 )

Filed 2/28/24 P. v. Robles CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081947
Plaintiff and Respondent,
v.
(Super. Ct. No. SCD145319)
JOSE LUIS GAMBOA ROBLES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Howard H. Shore, Judge. Affirmed.
William J. Baker, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel
Rogers, Alana R. Butler, and Steve Matthew Mulford, Deputy Attorneys
General, for Plaintiff and Respondent.
Jose Luis Robles appeals from a 2023 order denying his motion to
vacate his 2000 criminal convictions for drug offenses pursuant to Penal
Code1 sections 1473.7 and 1016.5. Robles contends he is entitled to relief
under section 1473.7 because (1) he did not meaningfully understand the
immigration consequences of his plea, and (2) he would not have accepted the
plea had he properly understood those consequences. Based on our
independent review, we conclude Robles has failed to meet his burden of
demonstrating that he did not meaningfully understand the immigration
consequences of his guilty plea. Accordingly, we need not decide the merits of
his argument regarding prejudice.
Robles also argues remand is necessary because the trial court did not
address section 1016.5. However, he makes no effort to show that his plea
should have been set aside on that ground. We conclude that the advisement
required under section 1016.5 was properly given.
We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
A. Plea and Sentence
Robles is a Mexican citizen. He moved to the United States in 1985,
when he was 21 years old. At the time of his motion to set aside his plea, he
was 59 years old. His mother and his then 30-year-old son were United
States citizens. His primary language was Spanish and he knew only a few
words in English.
In September 1999, the district attorney filed an information charging
Robles with conspiracy to sell a controlled substance (Pen. Code, §182,
subd. (a)(1); count 1), offering to sell and furnish a controlled substance
(Health & Saf. Code, § 11379, subd. (a); count 2), and possession for sale of a
controlled substance (Health & Saf. Code, § 11378; count 3). The information
1 All further statutory references are to the Penal Code unless otherwise
indicated.
2
alleged for each count that the offense involved more than 10 kilograms of
methamphetamine (Health & Saf. Code, § 11370.4, subd. (b)(3)2). Robles
faced 16-18 years in prison if convicted at trial.
In February 2000, Robles pled guilty to counts one and two, with a
reduced enhancement for more than four kilograms of methamphetamine for
both counts (Health & Saf. Code, § 11370.4, subd. (b)(2)). The district
attorney dismissed count three and stipulated to an eight-year sentence.
Robles completed and signed a plea form. He initialed a box that
stated, “I understand that if I am not a citizen of the United States a plea of
Guilty or No Contest can or will result in removal or deportation, exclusion
from admission to this country, and denial of naturalization.” He also
initialed a box next to the statement, “I declare under penalty of perjury that
I have read, understood, and initialed each item above and any attached
addendum, and everything on the form and any attached addendum is true
and correct.”
Robles’s attorney signed the plea form attesting that he “personally
read and explained to the defendant the entire contents of this plea form,”
“discussed all charges and possible defenses with the defendant, and the
consequences of this plea,” and “personally observed the defendant . . . read
and initial each item to acknowledge his/her understanding and waivers.”
The form also included the signature of a sworn Spanish language
interpreter verifying that she “truly translated for the defendant the entire
contents of this form” and that Robles “indicated understanding of the
contents of this form.”
2 Section 11370.4 was amended effective January 1, 2024. (See Stats.
2023, ch. 540, § 1, (Assem. Bill No. 701).)
3
Robles was also assisted by a Spanish speaking interpreter at the plea
hearing. Robles testified that his initials and signature on the plea form
were authentic, that he reviewed the form with his attorney, and that he was
assisted by a Spanish speaking interpreter before initialing and signing the
form. When the court asked if Robles had any questions about the contents
of the form, Robles stated, “No.”
The court asked, “Do you also understand if you are not now a citizen of
the United States of America, your plea of guilty to counts one and two and
the admission of the enhancements under count one and two, can result in
the immediate removal from this country upon your release from custody,
denial of admission into this country and the possible denial of
naturalization. Sir, do you understand that?” Robles responded with an
unequivocal, “Yes.”
The prosecutor then clarified that, “In light of this plea and the
structure of it, he will be determined an aggravated felon . . . which would
barr [sic] him from the reentry into the states, status in the United States
and stripped of his lawful permanent residence card and will be forever
excluded are the expressed immigration consequences that will take place
with this defendant . . . .” (Italics added.) The court asked, “Mr. Robles, do
you understand what . . . the prosecutor, just indicated to you?” Again,
Robles stated unequivocally, “Yes.” The court immediately asked, “With that
in mind, do you still wish to enter a plea of guilty to counts one and two and
admit the enhancements under counts one and two?” Robles confirmed,
“Yes.”
When asked if he had any questions about anything the court said to
him and whether there was anything he would like to ask his attorney,
Robles stated, “No.” He also confirmed that he did “thoroughly discuss” the
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case with his attorney including “the consequences of [his] plea of guilty.”
The court then proceeded to take Robles’s plea.
The court signed the plea form, indicating it had questioned Robles and
his counsel and found that Robles understood “the nature of the charges and
the consequences of the plea and admissions.” In March 2000, the court
sentenced Robles to the stipulated term of eight years in prison.
B. Robles’s Motion to Withdraw His Plea
After Robles completed his prison sentence, immigration agents
detained him and he was deported to Mexico in 2003. He returned to the
United States in 2004. In January 2023, almost 20 years later, Robles moved
to vacate his convictions under sections 1473.7 and 1016.5. He claimed that
he had recently consulted with an immigration attorney to legalize his
immigration status. He learned that his application would be denied because
of his convictions and that he could attempt to set aside his plea.
In his motion, Robles claimed he was an “unsophisticated man who did
not understand the byzantine complexities of immigration law.” He argued
“there is no evidence [h]e received and understood the required immigration
advisal in a manner he understood.”
The only evidence Robles submitted in support of his motion was his
own declaration. He asserted that his attorney told him that he had
arranged a “good deal” and that he should plead guilty, which would result in
a sentence of “a few years in prison.” His attorney said the alternative was
that he “could be sent to prison for many more years.” Robles decided to
plead guilty to resolve the case.
Robles declared that his attorney did not speak Spanish and he
“believe[d] the attorney filled out a guilty plea form.” He stated the attorney
“spent a few moments going over the form” but he “did not understand much
5
about what was going on.” He claimed he did not read the form because he
did not read English. According to Robles, the issue of immigration status
“never came up during my case” and he “d[id] not recall” his attorney asking
about his immigration status. He declared that his attorney did not warn
him that the convictions would guarantee his deportation for life.
Robles attested that he “believe[d] the judge went over the guilty plea
form.” However, he “d[id] not remember the details of what happened” and
he “d[id] not remember the judge warning [him] that the guilty plea could
subject [him] to deportation and other bad immigration consequences.”
Finally, Robles declared that no one explained to him that by pleading
guilty, he would be subject to “drastic immigration consequences including
deportation, and inadmissibility” and he would not have pled guilty had he
known this.
The People opposed Robles’s motion, contending that he failed to meet
his burden of proving by a preponderance of the evidence that an error had
occurred. The People argued that Robles’s declaration contradicted the
record, referring to the plea form with Robles’s initials indicating he read and
understood the immigration consequences. Additionally, the People argued
that Robles failed to demonstrate prejudice. Finally, the People argued the
motion was untimely because the 20-year delay was unjustified.
At the hearing on Robles’s motion, the court indicated that neither
party had provided the court with a copy of the plea form. The People stated
that it was attached to the motion and provided a copy to the court. The
court’s version of the motion did not have a copy of the plea form and defense
counsel did not recall attaching it to his motion. The court indicated that it
nonetheless would have wanted to review it. The court therefore had the
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clerk make a copy of the People’s version of the motion with the plea form
attached, and took the matter under submission.
The court issued a written statement of decision finding that Robles’s
motion was timely and denying it on the merits because Robles did not meet
his burden of proof. The plea form advised Robles that his plea “can or will
result in removal or deportation, exclusion from admission to this country,
and denial of naturalization. The court noted that “or will” was underlined
on the form. All the boxes on the form were initialed by Robles and signed
under penalty of perjury. The form was also signed with verifying
statements from the defense counsel, deputy district attorney, Spanish
interpreter, and judge. The court acknowledged that Robles claimed in his
declaration that he did not understand what was going on, he did not
remember his attorney discussing his immigration status, and he did not
remember the judge warning him about the immigration consequences of his
plea. However, “[u]nlike many published decisions addressing
Section 1473.7, the exhibits submitted here [did] not include a declaration by
defendant’s trial attorney or other corroborating evidence . . . .” The court
concluded that “[t]he plea documents make it clear that defendant
understood that he was facing the possibility of mandatory deportation. Any
representations by the Defendant to the contrary lack credibility.”
DISCUSSION
A. Standard of Review
We independently review on appeal a challenge to a criminal conviction
for being legally invalid due to prejudicial error within the meaning of section
1473.7. (People v. Espinoza (2023) 14 Cal.5th 311, 316, 319 (Espinoza).)
Under this standard, “ ‘ “an appellate court exercises its independent
7
judgment to determine whether the facts satisfy the rule of law.” ’ ” (Id. at
pp. 319–320.)
“[F]actual determinations that are based on ‘ “the credibility of
witnesses the [superior court] heard and observed” ’ are entitled to particular
deference, even though courts reviewing such claims generally may ‘ “reach a
different conclusion [from the trial court] on an independent examination of
the evidence . . . even where the evidence is conflicting.” ’ ” (People v. Vivar
(2021) 11 Cal.5th 510, 527 (Vivar).) In this case, however, the trial court
decided the matter on the papers. “ ‘[T]he trial court and this court are in the
same position in interpreting written declarations’ when reviewing a cold
record in a section 1473.7 proceeding.” (Id. at p. 528.) Accordingly, we will
independently determine whether Robles is entitled to relief under
section 1473.7.
B. Governing Legal Principles
Section 1473.7 allows noncitizens no longer in criminal custody to
petition to vacate a conviction if they can establish the 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.’ ” (§ 1473.7,
subd. (a)(1); Espinoza, supra, 14 Cal.5th at p. 316.) The Legislature enacted
section 1473.7 “to codify Padilla v. Kentucky [(2010) 559 U.S. 356] and related
California case law and to encourage the growth of such case law in
furtherance of justice[,]” recognizing that “[t]he immigration consequences of
criminal convictions have a particularly strong impact in California.”
(§ 1016.2, subds. (g), (h); see Stats. 2018, ch. 825, § 1, subd. (c); see also
People v. Lopez (2022) 83 Cal.App.5th 698, 703 (Lopez).) Interpreting
section 1473.7, the Supreme Court has elaborated that “when long-standing
8
noncitizen residents of this country are accused of committing a crime, the
most devastating consequence may not be a prison sentence, but their
removal and exclusion from the United States.” (Vivar, supra, 11 Cal.5th at
p. 516.)
As the moving party, the petitioner in a section 1473.7 proceeding bears
the burden of proof by a preponderance of the evidence. (§ 1473.7,
subd. (e)(1); Vivar, supra, 11 Cal.5th at p. 517.) The petitioner must prove
two elements. (Espinoza, supra, 14 Cal.5th at p. 319.) First, he must “show
that he did not meaningfully understand the immigration consequences of his
plea.” (Ibid.) A defendant’s own subjective error may provide a basis for
relief. (People v. Mejia (2019) 36 Cal.App.5th 859, 866; see also People v.
Alatorre (2021) 70 Cal.App.5th 747, 769.) “Next, the defendant must show
that his misunderstanding constituted prejudicial error. ‘[P]rejudicial
error . . . 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.’ ” (Espinoza, supra, 14 Cal.5th
at p. 319.)
A defendant seeking to withdraw his plea based on inadequate
advisement of immigration consequences must “corroborate such assertions
with ‘ “objective evidence.” ’ ” (Vivar, supra, 11 Cal.5th at p. 530.) “Objective
evidence includes facts provided by declaration, contemporaneous
documentation of the defendant’s immigration concerns or interactions with
counsel, and evidence of the charges the defendant faced.” (Espinoza, supra,
14 Cal.5th at p. 321.) “[N]o specific kind of evidence is a prerequisite for
relief,” but “[t]he more robust and inclusive a record, the greater the
opportunity for effective persuasion and meaningful judicial review.” (Id. at
p. 325.)
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C. Robles Failed to Meet His Burden of Establishing that He Did Not
Meaningfully Understand the Immigration Consequences of His Felony
Guilty Plea
There is no dispute that as a result of his guilty plea, Robles was
convicted of a serious controlled substance offense and aggravated felony,
which made deportation mandatory and excluded him from admission to the
United States. (See People v. Soto (2022) 79 Cal.App.5th 602, 607 (Soto);
People v. Patterson (2017) 2 Cal.5th 885, 895 (Patterson).) Robles contends he
was not sufficiently advised of these immigration consequences. He cites his
declaration as the only evidence supporting his claim that no one warned him
of the immigration consequences of his guilty plea and asserts the district
attorney provided no evidence to contradict his declaration. Exercising our
independent judgment, we conclude the trial court’s ruling was correct.
As an initial matter, Robles argues the court relied on “phantom”
documents that were not in the superior court record, referring to the
discussion during the hearing on his motion indicating that the court did not
initially have a copy of the plea form. However, the reporter’s transcript
shows the court obtained and relied on a file-stamped copy of the plea form,
which is also in the clerk’s transcript on appeal and is file-stamped with the
same date as the plea hearing, and accompanied by the clerk’s certificate that
the record is true and correct. There is no genuine dispute that this is a true
and accurate copy of Robles’s plea form. Accordingly, the plea form was part
of the superior court record and is also part of the record on appeal.
Contrary to Robles’s contention on appeal, the plea form directly
contradicts his declaration that no one explained the immigration
consequences of his plea. Robles signed it and initialed boxes indicating that
he understood that a guilty plea “can or will result in removal or deportation,
exclusion from admission to this country, and denial of naturalization” and
10
that he read, initialed, and understood each item in the form. While Robles
declared that he did not read the plea form because he did not read English, a
Spanish language interpreter signed the form attesting that she translated
the form for Robles and that he indicated his understanding of its contents.
His attorney also signed the form, confirming that he discussed the
consequences of the plea with Robles including the immigration
consequences, and that he personally observed Robles initial each item to
acknowledge his understanding. The trial judge also signed the form, stating
that he questioned Robles and his counsel concerning the pleas and found
that Robles understood the consequences.
We recognize, as Robles argues, that generic form statements and
warnings on plea forms are not necessarily dispositive. (See Patterson, supra,2 Cal.5th at pp. 895–897; Lopez, supra, 83 Cal.App.5th at p. 716.) “Even
where the form says that the defendant ‘will’ be deported, it does not
substitute for the advice of counsel, and it is not a categorical bar to relief.”
(People v. Manzanilla (2022) 80 Cal.App.5th 891, 906 (Manzanilla); see also
People v. Lopez (2021) 66 Cal.App.5th 561, 578; People v. Curiel (2023)
92 Cal.App.5th 1160, 1175 (Curiel).)
But in those cases, other objective evidence—such as attorney notes,
oral testimony, or affirmative actions taken by defendants after their
convictions—substantiated the defendant’s version of events. (See
Manzanilla, supra, 80 Cal.App.5th at p. 910 [rejecting claim that a
defendant’s initials and signature on a plea form conclusively showed he
subjectively understood he would be deported and stating that this “has been
rejected by numerous courts where there is contemporaneous evidence to the
contrary . . . .” (Emphasis added.)].)
11
In Curiel, for example, the Second District recently found corroborating
evidence sufficient to overcome a defendant’s signed acknowledgement that
her plea would mandate deportation. (Curiel, supra, 92 Cal.App.5th at
pp. 1177–1178.) There, the defendant had signed a plea form stating, “I
understand that if I am not a citizen of the United States, I must expect my
plea of guilty or no contest will result in my deportation . . . .” (Id. at
p. 1165.) Curiel’s section 1473.7 motion relied heavily on her own declaration
to support her claim that she did not properly understand those immigration
consequences. (Id. at p. 1167.) She alleged that she had relied on her
defense counsel’s representations that if she avoided jail time, she could avoid
deportation. (Ibid.)
Critically, however, other objective evidence corroborated Curiel’s
account. (Curiel, supra, 92 Cal.App.5th at pp. 1177–1178.) The trial court
held an evidentiary hearing on her petition, at which both Curiel and her
original counsel testified. (Id. at pp. 1168–1171, 1176–1177.) On appeal, the
court found that the testimony of Curiel’s defense counsel “corroborated the
statements in Curiel’s declaration” and confirmed that the advice she
received regarding the immigration consequences of her plea “was inadequate
and incomplete.” (Id. at p. 1177.)
Here, as the trial court noted, Robles put forth no evidence whatsoever
to corroborate the claims in his declaration. He provided no declaration or
testimony from his original defense counsel and no evidence that anyone even
attempted to contact him to provide information or supply a supporting
declaration. (Cf. Espinoza, supra, 14 Cal.5th at p. 325 [“Both the district
attorney and Espinoza’s counsel represented to the court that they tried,
without success, to contact the attorney who represented Espinoza at the
time his plea was entered”].)
12
Additionally, the record in this case contains more than just the
warnings on the plea form. The reporter’s transcript of the plea hearing also
contradicts Robles’s declaration that he was not advised of the immigration
consequences of his plea. Robles acknowledged at the plea hearing that he
initialed and signed the plea form after reviewing it with his attorney, that
he was assisted by a Spanish interpreter, and that he had no questions about
the contents of the form. He also confirmed that he understood the court’s
warning that his guilty plea could result in his removal and denial of
admission into the United States and possible denial of naturalization. And
after the prosecutor’s clarification, he confirmed that he understood that
because his plea would result in aggravated felony convictions, the
“immigration consequences that will take place” were that he would be
barred from reentry into the United States, “stripped of his lawful permanent
residency card,” and “forever excluded.” (Emphasis added.)
Robles in his declaration admitted that he believed the court reviewed
the plea form with him. While he declared that he “d[id] not remember” the
court warning him of the immigration consequences, he concedes on appeal
that the reporter’s transcript of the plea hearing “does include an
immigration consequences warning.” His only response to this is that he
“does not remember anyone warning him about the immigration
consequences . . . apparently because [he] did not understand the Spanish
translator.” However, Robles did not claim in his declaration that he did not
understand the translator at the plea hearing, nor is there any evidence to
support such a conclusion. Moreover, his professed lack of memory of the
immigration advisements given and translated into Spanish for him before
and at the plea hearing does not establish that he did not meaningfully
understand the immigration consequences at the time.
13
Based on our independent review of the record, Robles has not met his
burden of establishing by a preponderance of the evidence that he did not
“meaningfully understand” the immigration consequences of his guilty plea.
(§ 1473.7, subd. (a)(1).) Because Robles failed to corroborate his assertions
with objective evidence (Vivar, supra, 11 Cal.5th at p. 530), his declaration is
inadequate to contradict the plea form and transcript of the plea hearing
showing that he was advised of and acknowledged understanding of the
immigration consequences. (See People v. Abdelsalam (2022) 73 Cal.App.5th
654, 664 [concluding, where the plea form and plea hearing transcript
showed the defendant was fully advised of the immigration consequences of
his plea, the defendant’s declaration alone did not sufficiently establish that
he did not meaningfully understand those consequences, stating “[t]he claim
must be corroborated by evidence beyond the defendant’s self-serving
statements”].) Because the evidence is insufficient to establish that an error
occurred, we need not address the prejudice prong of the section 1473.7
analysis.
D. The Section 1016.5 Advisement Satisfied the Statute
Robles also briefly contends on appeal that the trial court did not
address the advisement required under section 1016.5.
Section 1016.5, subdivision (a) requires the court to administer the
following advisement on the record to the defendant:
“If you are not a citizen, you are hereby advised that
conviction of the offense for which you have been 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.”
Robles makes no effort to show that his convictions should have been
vacated on the basis that the section 1016.5 advisement was not given. To
the contrary, in arguing that a section 1016.5 advisal alone does not satisfy
14
section 1473.7, Robles appears to concede that the section 1016.5 advisal was
given. He asserts that “a proper Penal Code section 1016.5 advisement . . . is
not a bar to a section 1473.7 motion.” He also argues that in this case “on the
one hand you have . . . lifetime exile from the United States. And on the
other hand you have an incidental, pro forma, and robotic Penal Code section
1016.5 advisal.” Indeed, the advisement required under section 1016.5 was
at the very least satisfied by the admonition on Robles’s plea form that a
guilty plea “can or will result in removal or deportation, exclusion from
admission to this country, and denial of naturalization.” (See People v.
Bravo (2021) 69 Cal.App.5th 1063, 1072–1073 (Bravo)) [concluding the
admonition on the defendant’s plea form satisfied the advisement required
under section 1016.5].)
We acknowledge that even though it complies with section 1016.5, an
advisement that a plea “may have” specified immigration consequences is not
adequate to satisfy section 1473.7 for defendants, like Robles, with serious
controlled substance offenses. Such defendants “must be advised that they
will be deported, excluded, and denied naturalization as a mandatory
consequence of the conviction.” (Bravo, supra, 69 Cal.App.5th at p. 1073,
quoting People v. Ruiz (2020) 49 Cal.App.5th 1061, 1065 (Ruiz).) “ ‘A
defendant entering a guilty plea may be aware that some criminal
convictions may have immigration consequences as a general matter, and yet
be unaware that a conviction for a specific charged offense will render the
defendant subject to mandatory removal.’ ” (Ruiz, at p. 1065, quoting
Patterson, supra, 2 Cal.5th at pp. 889, 895.) “And for many noncitizen
defendants deciding whether to plead guilty, the ‘actual risk’ that the
conviction will lead to deportation—as opposed to general awareness that a
criminal conviction ‘may’ have adverse immigration consequences—will
15
undoubtedly be a ‘material matter[ ]’ that may factor heavily in the decision
whether to plead guilty.” (Id. at p. 896.)
But Robles did not argue below and does not argue on appeal that the
advisements he received were deficient under section 1473.7 because of the
precise language used on the plea form. Nor does he argue that the words
“can or will” on the plea form were inadequate to advise him that he would be
subject to mandatory removal—even with the added emphasis on “will.”
Regardless, as we have explained, Robles was in fact advised of the
mandatory immigration consequences of his plea on the record at the plea
hearing through a Spanish language interpreter, and he confirmed that he
understood them and still wished to proceed with the plea. (Compare with
Soto, supra, 79 Cal.App.5th at p. 609 [finding error under section 1473.7
where the plea form indicated only that there might be immigration
consequences and there was no mention during the plea colloquy of
immigration consequences].) Accordingly, we reject Robles’s claims under
both section 1016.5 and section 1473.7.
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DISPOSITION
The order is affirmed.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
17