People v. Ruiz CA2/8 ( 2024 )

Filed 9/20/24 P. v. Ruiz CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B330801
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA098500)
v.
JORGE ALEXANDER RUIZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Maria Andrea Davalos, Judge. Affirmed.
Law Offices of Mario Acosta, Jr. and Mario Acosta, Jr. for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Steven D. Matthews,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Jorge Alexander Ruiz appeals
from the denial of his motion to vacate pursuant to Penal Code
section 1473.7.
We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On January 4, 2007, at a hearing at which he was
represented by counsel and assisted by a Spanish language
interpreter, defendant pled guilty to one count of second degree
burglary (Pen. Code, § 459). He was sentenced to a low term of
16 months in prison with credit for 44 days of presentence
custody credits (30 actual, 14 conduct). A second count for
misdemeanor possession of drug paraphernalia (Health & Saf.
Code, § 11364, subd. (a)) was dismissed in accordance with the
terms of the plea agreement. The sentencing minute order
indicates that defendant, at the time, had three other pending
felony matters (case Nos. TA083110, TA075971 and BA294307)
and that his sentence would be run concurrent to all three.
During the plea colloquy, the court told defendant that if he
was not a citizen of the United States, his conviction in the case
“will cause your deportation, exclusion from admission to the
United States and denial of naturalization pursuant to the laws
of the United States,” commonly referred to as a Tahl waiver. (In
re Tahl (1969) 1 Cal.3d 122.) Defendant also confirmed, on the
record, that he had discussed the signed plea form with his
counsel, which also included a Tahl waiver, and that he had no
questions for the court.
After serving his sentence, defendant was deported in
December 2008 and then illegally reentered the United States
sometime in 2010. Defendant unsuccessfully applied for asylum.
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In April 2023, defendant filed a motion to withdraw his
plea and vacate his conviction pursuant to Penal Code
section 1473.7. He argued that after having litigated his asylum
request in immigration court for a number of years, he received
notice in July 2022 from the Department of Homeland Security of
a final removal order and was therefore seeking to vacate his
2007 plea to felony burglary. Defendant, who is a citizen of
El Salvador, was represented in 2007 by Deputy Public Defender
Valentin Rada. In the supporting declaration to his motion,
defendant said he told Mr. Rada he had a lawful work permit
called Temporary Protected Status (TPS) and he was fearful of
losing it and being deported. Defendant said Mr. Rada told him
he could probably get the felony burglary conviction reduced to a
misdemeanor at a later date and he would “be ok.” The attorney
who assisted defendant in filing the motion submitted a
declaration explaining that a felony conviction operated as a
mandatory disqualification from TPS under the rules of the
Department of Homeland Security, a point that had not been
explained to defendant, and that it may have been possible to
negotiate a misdemeanor burglary plea with a 364-day jail term
in order to avoid mandatory deportation.
The hearing on defendant’s motion was held on May 22,
2023. Defendant appeared through counsel and was not
personally present. The court entertained argument and
provided the parties with a lengthy explanation of its reasoning
for denying the motion. The court acknowledged its assessment
of defendant’s motion was under the totality of circumstance
approach of People v. Espinoza (2023) 14 Cal.5th 311, 319
(Espinoza).
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The trial court said it understood the argument that
despite receiving both oral and written Tahl waivers, defendant
did not meaningfully understand the consequences of accepting
the plea because his attorney, Mr. Rada, had represented to him
that the felony conviction could be reduced and he would “be ok”
with respect to his TPS status.
The court said that even accepting that point as true, it did
not believe defendant had shown prejudicial error as required by
Espinoza. The court explained there was “absolutely zero
information” about community ties in 2006, no showing of any
significant work history in the United States or any family
obligations, only documentation that defendant, some 10 years
after the plea, had married a woman here in 2017 and they had
three minor children together. The court also said defendant’s
exhibits showed that he told immigration officials in 2007 that he
had “no fear” of returning to El Salvador and had failed to
mention altogether that he had other children living in
El Salvador—an omission the court said was “glaring.”
The trial court underscored that defendant, at the time of
the plea, was already on three grants of felony probation, and
there were no contemporaneous documents supporting any
likelihood the prosecutor would have been willing to consider
reducing the felony burglary to a misdemeanor and offering less
than a year in jail. The prosecutor had already agreed to a low
term of 16 months for the felony burglary, despite defendant’s
record, and defendant had admitted to police officers he had
broken into the car, stolen numerous items and sold them on the
street. The court said defendant had failed to show it was
reasonably probable he would have rejected the plea had he
correctly understood the immigration consequences or that he
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could reasonably have expected an immigration-neutral
disposition.
This appeal followed.
DISCUSSION
Defendant first argues the trial court applied an incorrect
standard and improperly found that relief under Penal Code
section 1473.7 is only available to immigrants with legal
permanent resident status. The record does not support this
contention. The court mentioned defendant’s TPS as just one of
the factors to be considered under the totality of circumstances
review required by Espinoza. The court said defendant knew his
status in the United States was temporary and that it was a type
of less protected immigration status than that of a legal
permanent resident. The court did not in any way say defendant
was not entitled to seek relief under section 1473.7 because he
was not a legal permanent resident.
Defendant also says the court erred by “not deferring” to
the non-opposition of the People, citing subdivision (d) of Penal
Code section 1473.7. But subdivision (d) grants a trial court the
discretion to grant an unopposed motion, it does not mandate it.
(§ 1473.7, subd. (d) [“All motions shall be entitled to a hearing.
Upon the request of the moving party, the court may hold the
hearing without the personal presence of the moving party
provided that it finds good cause as to why the moving party
cannot be present. If the prosecution has no objection to the
motion, the court may grant the motion to vacate the conviction
or sentence without a hearing.”].) Nothing in the statutory
scheme supports the conclusion that a trial court acts illegally or
commits error if it exercises its discretion to deny an unopposed
motion.
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The trial court correctly applied the totality of
circumstances approach articulated in Espinoza and our review
of the court’s denial is de novo. (Espinoza, supra, 14 Cal.5th at
p. 319.) We exercise our “ ‘ “independent judgment to determine
whether the facts satisfy the rule of law.” ’ ” (Id. at pp. 319-320.)
Where, as here, there was no evidentiary hearing and “the trial
court’s findings ‘derive entirely from written declarations and
other documents,’ the trial court and the reviewing court ‘ “are in
the same position,” ’ ” no deference to the trial court’s factual
findings is owed. (Id. at p. 320.) “ ‘[I]t is for the appellate court
to decide, based on its independent judgment, whether the facts
establish prejudice under [Penal Code] section 1473.7.’ ” (Ibid.)
In seeking relief under Penal Code section 1473.7, a
“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. ‘[P]rejudical 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.)
It is undisputed here that defendant received both oral and
written Tahl waivers. But we have held that a Tahl waiver is not
a substitute for accurate advice from counsel, nor does it operate
to categorically bar a defendant from seeking relief and
withdrawing from a plea. (See, e.g., People v. Curiel (2023)
92 Cal.App.5th 1160, 1175; People v. Manzanilla (2022)
80 Cal.App.5th 891, 906.)
Defendant says his attorney did not appear to understand
what TPS was but told him that he could probably have the
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felony burglary conviction reduced to a misdemeanor at a later
date and he would “be ok” with respect to his immigration status
so he did not believe deportation was mandatory. Defendant
admitted that TPS is a temporary work permit status granted by
immigration authorities and the exhibits to his motion show his
TPS was set to expire in September 2002. Nothing in defendant’s
motion demonstrates that in January 2007, when defendant
accepted the plea, his TPS had been renewed or that he otherwise
had any legal status for being in the United States at that time.
Assuming for the sake of argument that his counsel’s
advice led him to believe he would not be deported if he accepted
the plea, defendant has not demonstrated prejudicial error.
Espinoza instructs that in order “ ‘[t]o determine whether there is
a reasonable probability a defendant would have rejected a plea
offer if he had understood its immigration consequences, courts
must ‘consider the totality of the circumstances’ ” and that factors
“ ‘relevant to this inquiry include the defendant’s ties to the
United States, the importance the defendant placed on avoiding
deportation, the defendant’s priorities in seeking a plea bargain,
and whether the defendant had reason to believe an immigration-
neutral negotiated disposition was possible.’ ” (Espinoza, supra,
14 Cal.5th at p. 320.)
Defendant’s declaration contains no information about any
family ties or commitments in the United States in January
2007. Defendant also did not disclose that in 2006, he had
children living in El Salvador—a fact disclosed only in the
pretrial services report and confirmed by counsel at the hearing.
His declaration also contains no information about any work
history or other community ties to the United States in 2006 that
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would have been a relevant factor to him in deciding whether to
accept or reject the plea.
Defendant said in his declaration that he placed great
importance on his TPS (despite that it does not appear he still
had that status in 2007) and on staying in the United States.
Defendant said he would not have accepted the plea to a felony if
he knew he would lose his TPS and be deported and that he
would have done anything possible “to fight to stay in this
country that I love very much and has given me so much, and
fought for my family” and avoid being deported and “lose my life.”
But defendant also said he told his attorney he wanted out of
custody and he wanted the case to be over with. Documents
attached to his motion indicated defendant told immigration
authorities in 2007 that he had “no fear” of returning to
El Salvador.
Defendant also candidly admitted in his declaration that
his attorney (Mr. Rada) told him that in his opinion “this was the
best deal” he could get in light of his past criminal record. It is
undisputed defendant had prior convictions for theft and drug
possession and, in January 2007, he was in violation of three
grants of felony probation. The plea offer was for the low term of
16 months to run concurrent to those three other cases. There is
nothing in the record indicating defendant had any reasonable
expectation the People would have considered agreeing to a
misdemeanor sentence given that history. There is nothing in
the record supporting any reasonable expectation for an
immigration-neutral disposition.
The record demonstrates the trial court properly examined
the totality of the circumstances and thoroughly explained why it
did not believe there was prejudice within the meaning of
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Espinoza. Based on our review of the record, we also conclude
defendant has not demonstrated prejudicial error.
DISPOSITION
The order denying Jorge Alexander Ruiz’s motion to vacate
is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
VIRAMONTES, J.
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