People v. Cardona CA2/7

Filed 5/25/22 P. v. Cardona CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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.
Pilar M. Escontrias, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Steven D.
Matthews, 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 faces mandatory deportation to
Mexico, contends he did not meaningfully understand the
immigration consequences of his guilty plea because his attorney
did not explain that his plea would result in his deportation from
the United States. Cardona also asserts his attorney failed to
negotiate an immigration-safe disposition that would have
allowed him to avoid deportation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Cardona’s Plea and Conviction of Corporal Injury to a
Spouse, Cohabitant, or Child’s Parent
According to the probation report, 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
1 Further undesignated statutory references are to the Penal
Code.
2
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
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
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
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 as 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
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,
3 The May 2, 2005 transcript was destroyed by the court
reporter pursuant to Government Code section 69955,
subdivision (e).
4
“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
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.
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
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
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
5 Cardona did not seek to vacate his 1995 or 2000
misdemeanor convictions.
6
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
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
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
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
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), provides that a person
who is no longer in criminal custody may file a motion to vacate a
conviction or sentence on the basis “[t]he 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 plea of guilty or nolo contendere. A finding of
legal invalidity may, but need not, include a finding of ineffective
8
assistance of counsel.”7 (See 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 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).”].)
“What someone seeking to withdraw a plea under
section 1473.7 must show is more than merely an error
‘damaging the moving party’s ability to meaningfully understand,
defend against, or knowingly accept the actual or potential
adverse immigration consequences’ of the plea. [Citation.] The
error must also be ‘prejudicial.’” (Vivar, supra, 11 Cal.5th at
p. 528.) “[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
7 Assembly Bill No. 1258 (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
consequences.” (Vivar, at p. 529; accord, 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.”].) “When courts assess whether a
petitioner has shown that reasonable probability, they 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.” (Vivar, at pp. 529-
530; accord, People v. Rodriguez, supra, 68 Cal.App.5th at
pp. 321-322; see People v. Mejia (2019) 36 Cal.App.5th 859, 866
[“The key to the statute is the mindset of the defendant . . . at the
time the plea was taken.”].)
“We review . . . rulings [under section 1473.7]
independently.” (Vivar, supra, 11 Cal.5th at p. 524; accord,
People v. Lopez (2021) 66 Cal.App.5th 561, 574 [“a motion to
withdraw a 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
10
based on the trial court’s personal observations of witnesses.”
(Vivar, at pp. 527-528; accord, 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”].) “Ultimately it is for the appellate court to
decide, based on its independent judgment, whether the facts
establish prejudice under section 1473.7.” (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
Cardona contends Disabatino knew he was not a citizen
and desired a disposition to allow him to continue to care for his
six-year-old son in the United States, yet Disabatino provided no
advice to Cardona on the potential immigration consequences of
the plea other than reading the Tahl waiver, and as a result
Cardona did not meaningfully understand that he would be
deported. Cardona has not met his burden to show error.8
Cardona did not present any objective evidence supporting
his conclusory assertion that he was not advised of and did not
understand the immigration consequences of his plea. (Cf. Vivar,
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.”], review granted December 15,
2021, S271782.)
11
supra, 11 Cal.5th at pp. 530-531 [defendant’s letters to the court
shortly after entering his plea objecting to his immigration hold
constituted objective evidence defendant did not understand the
potential immigration consequences of his plea]; People v.
Camacho (2019) 32 Cal.App.5th 998, 1009 [“defendant’s claims of
error were supported by his former attorney’s undisputed
testimony . . . that he misunderstood the potential immigration
consequence”].)
Further, there was strong evidence showing Cardona was
fully advised of the immigration consequences of his plea.
Disabatino testified 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 deportation.
The interpreter signed the 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 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.
Although Cardona testified he did not remember being
advised of the immigration consequences and would not have
12
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 he “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.
(Vivar, supra, 11 Cal.5th at pp. 527-528; People v. Martinez,
supra, 57 Cal.4th at p. 565.)
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.
13
DISPOSITION
The order denying Cardona’s motion to vacate his
conviction is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
14