People v. De Leon CA1/4 ( 2024 )

Filed 10/31/24 P. v. De Leon CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A169119
v. (Solano County
JONATHAN MISAEL DE LEON, Super. Ct. No. VCR237685)
Defendant and Appellant.
In 2021, defendant Jonathan Misael De Leon entered a no contest plea
to a charge of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)).1
He was sentenced to three years in prison. He later filed a motion under
section 1473.7, subdivision (a)(1) to vacate his conviction and withdraw his
plea, contending he did not understand the immigration consequences of the
plea. The trial court denied the motion, and De Leon appeals, arguing he met
his burden to establish eligibility for relief under section 1473.7. We affirm.
I. BACKGROUND
A. De Leon’s 2021 No Contest Plea
On May 4, 2021, De Leon was charged by complaint with assault with a
deadly weapon (§ 245, subd. (a)(1)). Among the charges was an allegation
1 Undesignated statutory references are to the Penal Code.
1
that he personally inflicted great bodily injury on the victim (referred to by
his initials, T.V.) (§ 12022.7, subd. (a)). The incident underlying the charge
occurred on March 21, 2021, when De Leon drove himself and two friends to a
wheel and tire shop to have the tires on his car realigned.2 De Leon and his
friends appeared to be drunk. After T.V. completed the work, De Leon
complained that the wheels had not been aligned properly. One of De Leon’s
friends told T.V., “ ‘If the car is not aligned, I will punch you in the face.’ ”
T.V. then told De Leon and his friends to leave the shop or T.V. would call the
police. De Leon told T.V., “ ‘Stop being a little bitch.’ ”
T.V. went into the shop’s office to call the police. De Leon and his
companions followed and, once inside, threw objects around the office and
punched T.V. in the face and head about 10 times. The shop’s owner called
911, causing De Leon and his friends to flee. As De Leon backed his car out
of the driveway, T.V. threw a small garbage can at the car. De Leon then put
the car in drive and “ ‘floored it’ ” forward toward T.V., striking him and
pinning his foot between the car and the alignment machine. De Leon and
his friends got out of the car and fled on foot.
T.V. sustained injuries to his foot and ankle. Witness statements and
video surveillance footage corroborated T.V.’s statement about the incident.
De Leon initially denied being at the shop. After being shown the
surveillance footage, he admitted being at the shop but denied driving the
car. De Leon later admitted being in the driver’s seat when the car struck
2 In their briefing in this appeal, the parties derive their summaries of
the underlying incident from the prosecution’s trial court brief opposing
De Leon’s motion to vacate his conviction and from the probation report, both
of which summarize the police report. At De Leon’s plea hearing, the parties
stipulated that the police report provided a factual basis for his no contest
plea.
2
T.V. but said someone else had depressed the accelerator pedal. De Leon’s
blood-alcohol content was 0.07 percent about three hours after the incident.
On December 9, 2021, De Leon entered a plea of no contest to the
assault with a deadly weapon charge, in exchange for dismissal of the great
bodily injury enhancement and a stipulated three-year midterm sentence for
the assault charge. De Leon signed a waiver of rights and change of plea
form, on which he initialed various advisements, including an immigration
advisement that read: “If I am not a citizen of the United States, a conviction
of this offense to which I am now entering a plea may, and with certain
offenses will, result in my deportation from this country, exclusion from
admission to the United States, and/or a denial of naturalization pursuant to
the laws of the United States. If represented by an attorney, I have discussed
this with my attorney and I know whether or not conviction for this offense
requires mandatory deportation and exclusion.” De Leon also agreed that he
had discussed the plea form with his attorney, initialing the statement, “I
declare that my attorney has reviewed and explained this document to me,
and I hereby freely and voluntarily, having full knowledge and
understanding of the rights that I am giving up and the possible
consequences which may result from my plea, do hereby request the Court to
accept my new and different plea(s).”
De Leon’s then-counsel, Sean Swartz, signed the plea form, confirming
that he had reviewed and explained it to De Leon and had “adequately
researched and advised [him] as to the immigration consequences of this
plea.” The statement signed by Swartz also confirmed that, based on his
conversation with De Leon, he was satisfied that De Leon’s plea was freely
and voluntarily made; De Leon understood the consequences of his plea; and
De Leon’s decision to plead no contest “was made only after a full discussion
3
with [Swartz] of the facts and the law of this case; the possible defenses, and
the consequences of the plea.”
At the plea hearing, the trial court (Hon. Daniel Healy) questioned
De Leon about the plea form. De Leon confirmed that the signature and
initials on the form were his, and that he had read the form and discussed it
with his counsel before signing it. The court then asked: “And do you
understand all the rights you have to a trial that you [are] willing[ly] waiving
by signing this form?” De Leon responded: “Yes, your Honor.” The court
stated: “So the agreement here is you’re entering a plea that’s going to result
in you being sentenced to the state prison for three years. The enhancement
is being dismissed. So you’re avoiding up to seven it sounds like. That’s the
main promise. Understood?” De Leon again responded: “Yes, your Honor.”
The court then accepted De Leon’s no contest plea, finding that he had been
fully informed of his rights and had knowingly, intelligently, and voluntarily
waived them.
On February 17, 2022, consistent with the plea agreement, the trial
court (Judge Healy) sentenced De Leon to the middle term of three years in
prison.
B. De Leon’s 2023 Motion To Vacate His Conviction and Withdraw
His Plea
On August 4, 2023, De Leon (through new counsel) filed a motion under
section 1473.7 to vacate his conviction and withdraw his plea. In the motion
and in a supporting declaration, De Leon stated that, when he entered his
plea, he did not meaningfully understand the immigration consequences of
the plea. De Leon asserted that Swartz did not advise him of the
consequences. De Leon stated that, in February 2023, he received from
4
immigration authorities a notice to appear that alleged he was deportable
based on his conviction of an aggravated felony.3
In his declaration, De Leon stated he was born in Guatemala and
moved to the United States with his father in 1997 when he was about seven
years old. He became a legal permanent resident in 2008. Since moving to
3 Under federal immigration law, “[a]ny alien who is convicted of an
aggravated felony at any time after admission is deportable.” (8 U.S.C.
§ 1227(a)(2)(A)(iii).) An aggravated felony includes a “crime of violence” as
defined in title 18 United States Code section 16, if the term of imprisonment
is at least one year. (8 U.S.C. § 1101(a)(43)(F); United States v. Vasquez-
Gonzalez (9th Cir. 2018) 901 F.3d 1060, 1065.) And in turn, a “crime of
violence” for these purposes is “an offense that has as an element the use,
attempted use, or threatened use of physical force against the person or
property of another.” (18 U.S.C. § 16(a).)
In their appellate briefs, both parties state that, under case law from
the United States Court of Appeals for the Ninth Circuit, a conviction of
assault with a deadly weapon under section 245, subdivision (a)(1)—
De Leon’s crime of conviction here—is a crime of violence and an aggravated
felony for purposes of federal law if, as occurred here, the defendant is
sentenced to at least one year in prison. (E.g., United States v. Vasquez-
Gonzalez, supra, 901 F.3d at pp. 1063–1064, 1068.) As we discuss below,
De Leon’s plea counsel Sean Swartz testified he understood that to be the
case, and the letter De Leon received from immigration authorities reflects
that view as well.
We note there may be some lack of clarity in federal law on this point.
(United States v. Gomez (9th Cir. 2024) 115 F.4th 987, 990, 992, fn. 1, 996
[concluding, contrary to earlier Ninth Circuit decisions, that a conviction of
assault with a deadly weapon under § 245, subd. (a)(1) is not a crime of
violence].) But in any event, we have no occasion in this appeal to address
whether we agree with the parties’ concession as to the immigration
consequences of De Leon’s plea. As we discuss below, even assuming
section 245, subdivision (a)(1) is deemed by federal law to be a crime of
violence with mandatory deportation consequences, the record in our view
establishes that Swartz advised De Leon of those consequences and that
De Leon understood them, so there is no basis under section 1473.7 to vacate
De Leon’s state law conviction.
5
the United States, he has lived, attended school, and worked in California.
His parents, siblings, and many cousins, aunts, and uncles live in the United
States. Prior to his conviction, he was living with his mother, father, and
sister. His father is a United States citizen, and his mother is a legal
permanent resident.
De Leon stated in his declaration: “At no time prior to entering my
guilty plea, did I fully understand that I would have permanent immigration
consequences and could be subjected to removal proceedings based on this
plea. I assumed that when my case was resolved and I did my time, all my
requirements were complete as long as I stayed out of trouble. I assumed I
would be safe from immigration consequences.” De Leon asserted that, after
his plea and just before his sentencing, he asked Swartz how the plea would
affect his status as a legal permanent resident, and Swartz responded that
De Leon would be “fine” as long as he did not associate with any gangs or get
into trouble while in prison. De Leon stated: “If I had understood the
permanent potential immigration consequences of pleading, I would have
requested my attorney to negotiate for an immigration safe plea or even go as
far as taking the case to trial.”
In a supplemental filing, De Leon submitted a declaration from his
mother, in which she stated that, between the time of De Leon’s plea and his
sentencing, she spoke to De Leon about his plea. De Leon’s mother stated: “I
asked [De Leon] if he knew what would happen to his legal permanent
residence because of this case. He said he did not know. I told him I did not
know what would happen either. I also suggested he talk to his criminal
defense attorney about what immigration consequences he would have. He
said he would talk to him.” De Leon also submitted Swartz’s handwritten file
notes, email correspondence between Swartz and the prosecutor about plea
6
negotiations, and a letter from Swartz to De Leon about the prosecutor’s plea
offer. These materials do not mention the immigration consequences of
De Leon’s plea.
The prosecutor opposed De Leon’s motion, arguing that De Leon had
failed to prove prejudicial error because the bare allegations of improper
advice from Swartz and De Leon’s inadequate understanding of immigration
consequences were not corroborated by contemporaneous evidence. The
prosecutor further contended that, based on the severity of De Leon’s crime
and the strength of the evidence against him, the People would not have
offered a more favorable plea deal or any deal that did not include an
admission by De Leon to the charge of assault with a deadly weapon.
On October 4, 2023, the trial court (Judge Healy) held a hearing on
De Leon’s motion. De Leon did not testify or appear at the hearing because
he was in immigration custody. Called by the prosecutor, Swartz testified
that he had been a criminal defense attorney for about 27 years and that he
had a custom and habit of explaining plea forms fully to his clients, including
any immigration advisements. Swartz also had a pattern and practice of
seeking immigration-neutral pleas in cases where the prosecution is receptive
to that type of disposition. Swartz was aware that a plea to the crime at
issue in De Leon’s case—assault with a deadly weapon—carried immigration
consequences, including deportation, exclusion from admission, and denial of
naturalization as a United States citizen. Swartz refused to answer
questions about his communications with De Leon due to the absence of an
express waiver from De Leon of the attorney-client privilege.
In response to questioning by the prosecutor, Swartz stated the case
file notes submitted by De Leon in support of his motion were not the entirety
of Swartz’s file for the case. When the court asked Swartz if the full case file
7
might include “something to indicate when immigration issues were
discussed,” Swartz stated, “I believe there would be responsive materials, if
there was an express waiver.”
The court denied De Leon’s motion, concluding that De Leon “made a
knowing and intelligent waiver and was aware of these issues [i.e., the
immigration consequences of the plea].” The court stated: “I agree that Mr.
Swartz is as thorough an attorney as we have around here. And
demonstrating that today, his efforts to protect the client continue even when
his performance is put at issue. [¶] . . . [I]t seems to me, based on the totality
of the circumstances, based on this record, that Mr. De Leon was adequately
advised of the consequences of this plea. [¶] And to the extent that it’s
relevant, there’s nothing in the record that suggests to me that robust and
aggressive negotiation efforts to find something—a plea that was more
favorable to his immigration status would have occurred or that I would have
signed off on it. [¶] So based on all of that, I’m going to deny the motion for
relief. And I find that the defendant made a knowing and intelligent waiver.”
De Leon appealed.4
II. DISCUSSION
De Leon contends he met his burden to show he is entitled to relief
under section 1473.7. We disagree.
A. Legal Standards
Section 1473.7 allows noncitizens who are no longer in criminal custody
to move to vacate a conviction if they can establish, by a preponderance of the
evidence, that the conviction is “legally invalid due to prejudicial error
4 An order granting or denying a section 1473.7 motion is appealable as
an order after judgment affecting the substantial rights of a party. (§§ 1237,
subd. (b), 1473.7, subd. (f).)
8
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.” (§ 1473.7, subd. (a)(1); see id.,
subd. (e)(1).) “A finding of legal invalidity may, but need not, include a
finding of ineffective assistance of counsel.” (Id., subd. (a)(1).)
A defendant seeking relief under section 1473.7 must satisfy two
principal elements. “The 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.” (People v. Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).)5
“[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.” (People v.
Vivar (2021) 11 Cal.5th 510, 529 (Vivar).) If the defendant meets his burden
of establishing prejudicial error, the court must grant the motion and allow
the defendant to withdraw the plea. (Id. at p. 523.)
We apply an independent standard of review in an appeal from a
section 1473.7 ruling. (Vivar, supra, 11 Cal.5th at pp. 524, 526, fn. 4, 527–
528; accord, Espinoza, supra, 14 Cal.5th at pp. 319–320.) Under this
5 In addition to these elements, a defendant must “also establish that
the conviction or sentence being challenged is currently causing or has the
potential to cause removal or the denial of an application for an immigration
benefit, lawful status, or naturalization.” (§ 1473.7, subd. (e)(1).) This
element is not disputed here. As noted, De Leon submitted evidence that
immigration authorities have taken steps toward removing him on the basis
that he was convicted of an aggravated felony, and he was in immigration
detention at the time of the hearing on his motion to vacate.
9
standard, “ ‘an appellate court exercises its independent judgment to
determine whether the facts satisfy the rule of law.’ ” (Vivar, at p. 527.)6
The Supreme Court explained in Vivar that “ ‘ “[i]ndependent review is
not the equivalent of de novo review,” ’ ” and “[a]n appellate court may not
simply second-guess factual findings that are based on the trial court’s own
observations.” (Vivar, supra, 11 Cal.5th at p. 527.) The appellate court must
give deference to the trial court’s factual findings if they are based on “ ‘ “the
credibility of witnesses the [superior court] heard and observed,” ’ ” although
“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.” ’ ” (Ibid.) In cases where the trial court’s
factual findings “derive entirely from written declarations and other
documents,” the trial court and the reviewing court “ ‘are in the same
position,’ ” and no deference is owed.7 (Id. at p. 528.) “Ultimately it is for the
6 The Vivar court stated: “[O]ur embrace of independent review in this
context is a product of multiple factors with special relevance here: the
history of section 1473.7, the interests at stake in a section 1473.7 motion,
the type of evidence on which a section 1473.7 ruling is likely to be based, and
the relative competence of trial courts and appellate courts to assess that
evidence.” (Vivar, supra, 11 Cal.5th at p. 527.)
7 The Vivar court noted that these aspects of the independent standard
of review under section 1473.7 differ from the treatment of factual findings
under the substantial evidence standard. When the substantial evidence
standard applies, (1) “adequately supported factual findings not only merit
deference, but are binding, on appeal” (Vivar, supra, 11 Cal.5th at p. 527,
fn. 6), and (2) “ ‘an appellate court should defer to the factual determinations
made by the trial court,’ regardless of ‘whether the trial court’s ruling[s are
based] on oral testimony or declarations’ ” (id. at p. 528, fn. 7).
10
appellate court to decide, based on its independent judgment, whether the
facts establish prejudice under section 1473.7.”8 (Ibid.)
B. Whether De Leon Meaningfully Understood the Immigration
Consequences of His Plea
Whether we exercise independent review or employ a more deferential
standard, we conclude De Leon did not show that he failed to meaningfully
understand the immigration consequences of his plea. As noted, in his
declaration submitted in support of his motion to vacate his conviction,
De Leon asserted that he did not “fully understand” his plea would have
“permanent immigration consequences,” and that a post-plea conversation
with his then-attorney Sean Swartz led him to believe his immigration status
was not at risk. De Leon also submitted a declaration from his mother
8 Vivar adopted this standard of review in a case where only the
prejudice prong of the section 1473.7 inquiry—whether the defendant would
have rejected the plea if he had understood its immigration consequences—
was at issue. (Vivar, supra, 11 Cal.5th at p. 523 [accepting as true the Court
of Appeal’s finding that counsel failed to advise the defendant of the
immigration consequences of his plea; “We review only the Court of Appeal’s
finding that Vivar suffered no prejudice on account of counsel’s error. In
examining that finding, we consider first what is the applicable standard of
review.”]; see Espinoza, supra, 14 Cal.5th at p. 319 [citing Vivar and stating
“[w]e apply independent review to evaluate whether a defendant has
demonstrated a reasonable probability that he would have rejected the plea
offer had he understood its immigration consequences”].)
We will assume the independent review standard also applies in
reviewing a trial court’s findings pertaining to the first element of a
section 1473.7 showing, i.e., that the defendant did not meaningfully
understand the immigration consequences of his plea. (See, e.g., People v.
Curiel (2023) 92 Cal.App.5th 1160, 1173, 1175, 1180 [stating generally that
the independent review standard applies in evaluating “whether a defendant
is entitled to relief under section 1473.7,” and applying the standard to both
elements].) In any event, we would conclude under any standard of review
that De Leon is not entitled to relief.
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recounting a conversation in which De Leon stated he did not know what
immigration consequences his plea would have, and he submitted some of
Swartz’s file notes and correspondence that addressed other aspects of the
plea deal but not the immigration consequences.
But set against this evidence (and in direct contradiction to De Leon’s
after-the-fact declaration) is the form De Leon signed under penalty of
perjury at the time of his plea hearing, in which he confirmed his
understanding that his plea “may, and with certain offenses will,” result in
deportation and other immigration consequences. As De Leon points out, a
warning that deportation is possible (such as the standard advisement
required by § 1016.5) is not enough to establish a defendant understood the
mandatory immigration consequences of his plea. (Vivar, supra, 11 Cal.5th
at p. 533; see People v. Patterson (2017) 2 Cal.5th 885, 889, 895.) And it has
been held that even a waiver form advising of mandatory immigration
consequences (such as stating that a defendant’s plea “ ‘will result’ ” in
deportation) “ ‘does not substitute for the advice of counsel, and it is not a
categorical bar to relief.’ ” (People v. Curiel, supra, 92 Cal.App.5th at
p. 1175.) But the form that De Leon signed here states more specifically that
De Leon had discussed the matter with his attorney and that “I know
whether or not conviction for this offense requires mandatory deportation and
exclusion.” And as noted, the form also includes attorney Swartz’s
declaration under penalty of perjury that he did advise De Leon of the
immigration consequences of his plea. Based on the competing documentary
evidence alone, we are not persuaded De Leon has carried his burden to show
he did not understand the immigration consequences of his plea.
Moreover, the record here is not limited to documentary evidence.
Swartz testified at the hearing on the motion to vacate that it is his pattern
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and practice to advise each client about the immigration consequences of a
plea. Swartz knew that a plea to the crime charged here—assault with a
deadly weapon—carried immigration consequences, including deportation,
exclusion from admission, and denial of naturalization as a United States
citizen. Swartz stated the case file notes submitted by De Leon were not the
entirety of Swartz’s file. In response to questioning about whether his full
case file might include information about whether immigration issues were
discussed, Swartz stated, “I believe there would be responsive materials, if
there was an express waiver [of the attorney-client privilege].” The trial
court’s ruling reflects that it credited Swartz’s testimony about his pattern
and practice in plea matters, and under the applicable review standard here,
we extend “particular deference” to the court’s evaluation of live witness
testimony. (Vivar, supra, 11 Cal.5th at p. 527.)
Based on this evidence, we conclude De Leon did not show that Swartz
failed to advise him of the immigration consequences of his plea. We
recognize that a defendant’s “own error” in failing to understand a plea’s
immigration consequences (apart from whether counsel provided deficient
advisements) can establish the first prerequisite to relief under
section 1473.7. (People v. Camacho (2019) 32 Cal.App.5th 998, 1009.) But
here, De Leon’s assertion in his declaration that he failed to understand the
immigration consequences of his plea is based in part on his claim that
Swartz failed to provide that information to him. And in any event, we are
not persuaded that De Leon did not understand the immigration
consequences of his plea. In our view, De Leon’s broad after-the-fact
statements on this point (when set against the statements he and Swartz
made under penalty of perjury at the time of the plea, as well as Swartz’s in-
court testimony about his practices in these matters) fail to establish, by a
13
preponderance of the evidence, that he failed to meaningfully understand the
immigration consequences of his plea. (§ 1473.7, subds. (a)(1), (e)(1).) He is
not entitled to vacate his conviction or withdraw his plea.
C. Prejudice
Even if De Leon had established that he did not understand the
immigration consequences of his plea, we would conclude he failed to show
“that his misunderstanding constituted prejudicial error.” (Espinoza, supra,
14 Cal.5th at p. 319.) As noted, showing prejudice in this context “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.)
“To 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.’
[Citation.] ‘Factors particularly 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.’ [Citations.] Also relevant are the
defendant’s probability of obtaining a more favorable outcome if he had
rejected the plea, as well as the difference between the bargained-for term
and the likely term if he were convicted at trial. [Citation.] These factors are
not exhaustive, and no single type of evidence is a prerequisite to relief.”
(Espinoza, supra, 14 Cal.5th at pp. 320–321.)
The Attorney General acknowledges, and we agree, that De Leon
showed he had strong ties to the United States at the time of his plea.
De Leon states in his declaration that he came to the United States as a child
14
and has spent most of his life here; many of his relatives live in the United
States; and his father is a citizen. And De Leon states in his declaration that
his priority has always been to remain in the United States with his family.
But other factors weigh against a finding of prejudice on this record.
There was no reason to believe an immigration-neutral disposition (i.e., one
where De Leon would spend less than one year in custody) was possible.
Swartz testified he generally seeks immigration-neutral pleas in cases where
the prosecution is receptive to that type of disposition, but there was no
record of such a disposition being offered here. And both the prosecutor and
the trial court (the same judge who had presided at the plea hearing a few
years earlier) suggested such a resolution was never a reasonable possibility.
De Leon’s contention that he would have rejected the plea and gone to
trial is also undermined by what likely would have resulted had he done so.
In addition to T.V.’s own statement, other witnesses and surveillance video
footage supported that De Leon assaulted T.V. by driving his car toward him,
“ ‘floor[ing] it,’ ” and striking T.V., causing significant injuries. Moreover, it
is unlikely De Leon would have rejected the plea and gone to trial in light of
the disparity between the potential sentence after conviction at trial and the
sentence he received as part of his plea deal. In contrast to the three-year
sentence he received under the deal, conviction at trial could have resulted in
up to a seven-year prison sentence—the four-year upper term for assault with
a deadly weapon (§ 245, subd. (a)(1)), plus three years for the great bodily
injury enhancement (§ 12022.7, subd. (a))—with limited available credits
(§§ 2933.1, subd. (a), 667.5, subd. (c)(8)). This disparity and the strength of
the evidence against De Leon weigh against a finding that he would have
rejected the plea.
15
After considering the totality of the circumstances, we conclude
De Leon did not establish by a preponderance of the evidence that he was
prejudiced by his alleged misunderstanding of the immigration consequences
of his plea.
D. De Leon’s Other Arguments Are Not Persuasive
De Leon presents a variety of other attacks on the trial court’s ruling,
but his arguments are not persuasive. De Leon contends the court
misunderstood the applicable burden of proof and incorrectly focused on
whether Swartz provided ineffective assistance. We do not find in the record
any misstatement by the court as to the burden of proof, and in any event we
have determined independently that De Leon did not establish prejudicial
error by a preponderance of the evidence. As to ineffective assistance, the
court expressly noted that a showing on that point is not a prerequisite to
relief under section 1473.7, while recognizing that an important thrust of
De Leon’s argument was that Swartz provided inadequate advisements. We
find no error.
Next, De Leon asserts briefly, and for the first time on appeal, that the
trial judge should have recused himself from hearing De Leon’s
section 1473.7 motion because the judge allegedly could not be impartial in
evaluating the testimony of attorney Swartz, who had represented De Leon
at the plea hearing. De Leon bases his claim of judicial bias on a statement
the trial judge made during the hearing on De Leon’s section 1473.7 motion.
The judge stated: “I guess I should disclose to—just for Mr. Camacho
[De Leon’s counsel at the section 1473.7 hearing], just so you know, Mr.
Swartz has been an attorney in my court for years. I mean, I’ve known him
for—even before I was a judge. I knew him when I was an attorney, as well, I
believe. [¶] . . . [¶] I don’t know if we had cases together. But he has been
16
and he is—I can’t really ignore history completely. He is a very thorough
fellow, in my experience. And I appreciate the fact he’s doing this now.”
De Leon claims the judge’s statement reveals he had a “clear bias and
preference” toward Swartz, requiring the judge to recuse himself.
De Leon forfeited any claim of judicial bias by failing to raise it in the
trial court. (People v. Johnson (2018) 6 Cal.5th 541, 592.) De Leon notes the
trial judge made the above disclosure after the section 1473.7 hearing had
begun, but De Leon provides no explanation as to why he could not have
raised a judicial bias claim at that time if he believed it had merit. (People v.
Guerra (2006) 37 Cal.4th 1067, 1112 [defendant’s willingness to let the entire
trial pass without raising an appropriate objection “not only forfeits his
claims on appeal but also strongly suggests they are without merit”].) In any
event, the judge’s statement that he was familiar with Swartz’s work and
reputation as a thorough advocate does not suggest that the judge could not
fairly evaluate Swartz’s testimony and the other evidence presented at the
hearing.
Finally, De Leon argues, again for the first time on appeal, that alcohol
abuse affected his ability to understand the plea proceedings and the
immigration consequences of his plea. This claim is speculative and does not
persuade us the trial court erred. Although the record shows De Leon had an
alcohol abuse problem, he did not claim in his declaration in support of his
section 1473.7 motion that alcohol abuse caused him to fail to understand the
immigration consequences of his plea. And De Leon affirmed under penalty
of perjury when he signed his plea form that he was not under the influence
of alcohol or any other substance. De Leon made coherent answers at the
plea hearing, and the court found he made a knowing, intelligent, and
voluntary waiver of his rights. There is no basis for reversal.
17
III. DISPOSITION
The order denying De Leon’s section 1473.7 motion to vacate his
conviction and withdraw his plea is affirmed.
STREETER, J.
WE CONCUR:
BROWN, P. J.
GOLDMAN, J.
18