People v. Castillo

Filed 5/12/21; certified for publication 6/1/21 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303413
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA002067)
v.
CARLOS CASTILLO
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Frederick N. Wapner, Judge. Affirmed.
Christopher L. Haberman, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
INTRODUCTION
In 2019, appellant Carlos Castillo filed a motion to vacate
his 1989 conviction for possession for sale of cocaine. He claims
his defense counsel failed to advise him about the adverse
immigration consequences of entering a guilty plea and, as a
result, he did not understand that he was facing deportation on
the basis of his conviction and plea. The trial court denied
appellant’s motion, and he appealed.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. 1989 Felony Conviction
On April 30, 1989, appellant was arrested for possession for
sale of a controlled substance (Health & Saf. Code, § 11351)—a
felony. Officers retrieved 13 bindles of cocaine totaling
3.6 grams, an air pistol, a pipe with cocaine residue, and $190 in
cash in various denominations.
On October 17, 1989, a pre-trial hearing took place before
Judge Bernard J. Kamins; appellant was represented by Diane
Wiseman (Wiseman). The People offered appellant a sentence of
six to 12 months if he pled guilty as charged. The court noted
appellant faced four years in prison but stated it would sentence
him to a minimum of six months if he took the plea at this “very
early stage of the case,” so long as he did “not hav[e] any prior
felonies. If [he did], the penalty goes up.”
Appellant told the court he “wasn’t selling [cocaine].” The
court explained he was charged with possession of cocaine in a
quantity sufficient to sell and that the prosecutor was “not
charging you with selling it.”
2
Wiseman advised the court appellant “would like to proceed
to trial [and] would request the court order that the police
fingerprint the bag.” The court explained it was “up to” the
prosecution whether to have the bag fingerprinted. The court
cautioned appellant that if he opted for trial, he “may be looking
at four years” instead of six months. The court further cautioned
appellant that the evidence at trial “[is] really going to be your
word against the policeman’s.”
The record reflects appellant and Wiseman conferred off
the record. Wiseman then advised the court that appellant
authorized her to disclose he recently pled guilty to possession or
possession for sale of marijuana. The court told appellant it
won’t “punish him for his honesty” and if appellant “wants to
plead at this time, [the court] would still keep [appellant’s
sentence] under a year.” Wiseman then informed the court
appellant “wishes to accept.” The court instructed the prosecutor
to take the plea.
The record reflects appellant and Wiseman again conferred.
Appellant, who had appeared in this matter as Richard Rivas and
later as Carlos Castillo, told the court his true name was Hugo
Zelaya. The court commended appellant, stating “[i]t’s very
refreshing to see someone come forward and be as honest.”
Wiseman then informed the court it is “possible” appellant
had two prior convictions; she explained appellant “was on
probation on one case” when he had a second case, but was
unsure whether these two prior cases were consolidated. The
court commented “this is getting to be a real nightmare” and
asked whether they could proceed to “just take the plea now.”
The court indicated appellant was “the first guy that’s been
honest at this point” and that “most [defendants] keep holding
3
out and it turns out they are under all kinds of probation under
different names.”
The prosecutor took the plea, and advised appellant of his
rights and the consequences of the plea, including: “If you’re not
a citizen of the United States, pleading guilty could result in your
deportation, denial of reentry, or denial of naturalization as a
United States citizen. [¶] Do you understand that?” Appellant
responded, “Yes.” Appellant confirmed he had time to talk about
this case with his attorney and was “pleading guilty freely,
voluntarily, and because [he is] guilty.” Appellant waived his
rights and pled guilty.
The court found “a knowing and intelligent waiver.”
II. 2019 Motion to Vacate the 1989 Conviction
On March 25, 2019, appellant, under the name Hugo
Zelaya, filed a motion to vacate his 1989 conviction pursuant to
Penal Code1 section 1473.7, on the ground he “did not
meaningfully understand, was unable to defend against and did
not knowingly accept the actual or potential adverse immigration
consequences of a plea of guilty.” He alleged his counsel “failed to
investigate and advise him about the immigration consequences
that he was facing.”
In support of his motion, appellant submitted a declaration
signed under penalty of perjury, detailing the following:
Appellant was born in El Salvador. He participated in the
Fuerzas Populares de Liberacion (FPL)—an opposition political
party—for six to eight months, where he occasionally painted
banners; he also participated in an armed takeover and shutdown
1 All further undesignated statutory references are to the
Penal Code.
4
of a local church. He soon discovered the government was
“spying” on him and that his name was on a list of people whom
the government wanted to kill. In 1979, appellant learned the
Salvadoran government, army, national guard, and
commissioners killed some of his friends and associates “because
of their involvement in the FPL opposition party.” In 1981,
appellant (then 15 years old) “fled El Salvador” and arrived
unaccompanied in the United States.
He explained he started using the name Mario Gonzalez-
Beltran after he witnessed the killing of a MS-13 gang leader
known as El Ratta in Los Angeles. MS-13 gang members
questioned him about the killing and beat him up with a bat. In
1990, MS-13 gang members shot him in the stomach. In 1992 or
1993, appellant changed his name and moved to San Diego, “in
the hope that they could not find me.” He met his wife thereafter
and they have three children together.
On July 3, 2012, appellant was detained at an immigration
detention facility and held for four years based on his 1989
conviction. In 2016, he was released pending conclusion of his
immigration case. He is now “in immigration proceedings and
[is] seeking asylum” as he is “terrified of the prospect of being
deported to El Salvador.” While detained, he wrote three letters
to Wiseman asking for help.
Appellant asserted Wiseman never asked him about his
immigration status in 1989 and did not inform him that a
conviction for violating Health and Safety Code section 11351 is
an aggravated felony that necessarily results in deportation from
the United States. Appellant further asserted had he known
such information, he would not have pled guilty because he did
5
not wish to be deported to El Salvador, “a country [he] fled
because of violence and the death threats [he] received.”
Appellant, now 53 years old, stated he wishes to stay with
his family in the United States, which he considers his home.
Appellant included as exhibits to his declaration the three
letters he sent to Wiseman in 2015, pleadings related to the 1989
case, and the reporter’s transcript of relevant proceedings held in
1989. He also provided a declaration by E. Katharine Tinto
(Tinto), a clinical professor of law and the director of the Criminal
Justice Clinic at the University of California, Irvine School of
Law. After review of the court file, defense counsel’s file,
appellant’s criminal history, and the reporter’s transcript of
relevant hearings, Tinto opined Wiseman’s representation of
appellant “fell below the standards for reasonable effective
assistance of counsel with regard to advice and defending against
the immigration consequences of the conviction.”
Appellant also submitted a letter he received from
Wiseman dated January 9, 2019. In this letter, Wiseman stated
she represented appellant 29 years prior, and did not have an
“independent recollection” of the specifics of the case, including
whether she negotiated with the prosecutor for a more
immigrant-neutral conviction and whether she advised appellant
about the immigration consequences of the plea.
Wiseman stated it was her general custom and practice to
interview, advise, and speak with her clients before court
appearances. Wiseman’s file indicated she met with appellant on
September 12, 1989, since the date “9/12” is written next to her
case interview notes. Based on her review of the notes, Wiseman
believed she “met with [appellant] two to three times before doing
6
his preliminary hearing” and “at least three times between his
preliminary hearing and guilty plea.”
Wiseman also stated it was her practice to review probation
reports with clients; thus, it would be her “practice to review with
[appellant] the discussion in the [probation] report regarding
[his] prior deportation under the name of Hugo Cortez-Gonzalez,
his use of many aliases” and that immigration authorities were
notified via letter on March 14, 1988. A Spanish-language
interpreter was used during Wiseman’s meetings with appellant.
Wiseman ceased representing appellant sometime in December
1989, when a conflict of interest was discovered.
The People opposed appellant’s motion. In support, they
attached as an exhibit the CLETS printout and criminal history
for appellant, which showed he had several felony convictions
prior to the 1989 case: possession of marijuana for sale (Health &
Saf. Code, § 11359) in 1986; possession of a controlled substance
(id., § 11350, subd. (a)) in 1987; and sale/furnishing of marijuana
(id., § 11360, subd. (a)) in 1988. The CLETS printout also
showed appellant had pled guilty to multiple crimes after his plea
in the 1989 case, including transportation/sale of a controlled
substance (id., § 11352, subd. (a)) in 1990; possession for sale of a
controlled substance (id., § 11351) in 1992; use/under the
influence of a controlled substance (id., § 11550, subd. (a)) in
2001; and driving under the influence with a prior (Veh. Code,
§ 23152, subd. (a)) in 2010. Appellant’s criminal history record
also showed he had used between 10 and 15 different names and
between five and seven different birthdays within the last
30 years.
7
Based on appellant’s criminal history, the People argued
appellant had previously been given immigration advisements
and was put on notice of potential immigration consequences.
III. Hearing and Ruling on Motion to Vacate
The hearing on appellant’s motion took place August 15,
2019 and October 17, 2019.
Appellant testified on his own behalf. For the most part, he
repeated the information in his declaration and provided the
following additional relevant information. When appellant left El
Salvador, he went to Guatemala, then Mexico, and then “crossed
the border in Nuevo Leon, Tamaulipas to Laredo, Texas.” He
remained in Texas from 1981 until 1985, then moved to Los
Angeles. In 1985, he was deported by the Immigration and
Naturalization Service (INS) to Mexico. He returned to the
United States. In 2012, he was picked up again and detained in
immigration custody.
During cross examination, appellant denied ever being
advised about immigration consequences during his other felony
cases; he was asked specifically about his 1986 conviction by plea
for possession of marijuana for sale, his 1987 conviction by plea
for possession of a controlled substance, his 1990 conviction by
plea for transportation/sale of a controlled substance, and his
2001 conviction by plea for use or being under the influence of a
controlled substance. He said that in the last 30 years,
throughout the dozen or so cases and different counsel he has
had, “no lawyer ha[d] told [him] . . . [he] was gonna suffer
immigration consequences.” He said he was “positive” he was
never told about immigration consequences. He admitted,
however, that the courts had notified him of immigration
8
consequences, stating “that’s the proceeding of the court, and I
think [that] they do it every time.”
Notably, when asked by the prosecutor if, in the course of
the last 30 years, he “used those 12 to 15 names or five to six
different birth dates because [he] knew that [he was] in danger of
being deported due to [his] convictions,” appellant responded,
“Yes.”
As to the 1989 case, appellant recalled only one
conversation with counsel. Appellant said Wiseman never
discussed immigration consequences that might arise from a
conviction. He said he “felt cornered” by Wiseman “because she
didn’t want to help” him. He recalled having a Spanish
interpreter present with Wiseman during the 1989 case.
Appellant testified he does not wish to be deported to El
Salvador, where he is afraid for his life. He wants to remain in
the United States with his wife and adult children. He has a
half-brother still residing in El Salvador.
Following argument, the trial court denied the motion to
vacate. The court commented that motions such as appellant’s
“tug at [the] heart strings,” but was not convinced by appellant’s
declaration and testimony. The court found appellant “was
emphatic that there was never a lawyer who told him anything
about the immigration consequences. Not one. . . . [¶] And I just
don’t believe it.”
The court made further findings: “I think what was going
on is what’s all too typical in the American criminal justice
system What’s the best deal I can get? I’m sure it was horrible
in El Salvador, but I do not believe in the forefront of his mind at
that moment when he was sitting in front of Judge Kamins, as
bad as that plea sounds, that he was thinking to himself, no way
9
am I doing this to take this chance. I don’t care what they offer
me. I’m going to trial. No. [¶] Judge Kamins kept telling you,
this is the best deal. [E]ven though he . . . made the nightmare
comment, he kept complimenting [appellant] on his honesty,
which is ironic, I think, in light of this finding. And the more he
complimented, the more other things came out.”
Appellant timely appealed.
DISCUSSION
Appellant contends his conviction must be vacated because
defense counsel failed to advise him of the actual immigration
consequences of his plea and failed to defend against such
immigration consequences by pursuing an immigration-neutral
plea deal. He argues Wiseman rendered ineffective assistance of
counsel. He argues this prejudicial error damaged his ability to
understand and knowingly accept the actual/potential adverse
immigration consequences of his plea. He also contends the trial
court applied “an incorrect test” in denying the motion.
I. Standard of Review
Our Supreme Court recently determined the standard of
review for section 1473.7 motion proceedings. In People v. Vivar,
(May 3, 2021, S260270) ___Cal.5th ___[2021 WL 1726827]
(Vivar), the Court endorsed the independent standard of review.
(Id. at p. *6.) Under independent review, an appellate court
exercises its independent judgment to determine whether the
facts satisfy the rule of law. (Id. at p. *8.) When courts engage in
independent review, they should be mindful that independent
review is not the equivalent of de novo review. (Ibid.) An
appellate court may not simply second-guess factual findings that
are based on the trial court’s own observations. (Ibid.) Factual
10
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. (Ibid.) In section 1473.7 motion
proceedings, appellate courts should similarly give particular
deference to factual findings based on the trial court’s personal
observations of witnesses. (Ibid.) Where the facts derive entirely
from written declarations and other documents, however, there is
no reason to conclude the trial court has the same special
purchase on the question at issue; as a practical matter, the 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. (Ibid.) Ultimately it is for the appellate court
to decide, based on its independent judgment, whether the facts
establish prejudice under section 1473.7. (Ibid.)
II. Applicable Law
Mandatory removal from the United States is a
consequence of being convicted of a crime deemed an aggravated
felony under federal immigration law. (Moncrieffe v. Holder
(2013) 569 U.S. 184, 187–188 (Moncrieffe); 8 U.S.C. § 1228,
subd. (c) [aggravated felon is “conclusively presumed”
deportable].) Thus, an aggravated felony conviction renders a
defendant ineligible for relief such as asylum and cancellation of
removal. (Moncrieffe, at p. 187.) A violation of Health & Safety
Code section 11351 is an aggravated felony. (People v.
Ogunmowo (2018) 23 Cal.App.5th 67, 77 (Ogunmowo); see
Fonseca v. Fong (2008) 167 Cal.App.4th 922, 925, fns. 1, 2.)
11
Section 1473.7 authorizes a person who is no longer in
criminal custody to move to vacate a conviction or sentence where
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 plea of guilty or
nolo contendere.” (§ 1473.7, subd. (a)(1), italics added.)
“Ineffective assistance of counsel that damages a
defendant’s ability to meaningfully understand, defend against,
or knowingly accept the actual or potential adverse immigration
consequences of a guilty plea, if established by a preponderance
of the evidence, is the type of error that entitles the defendant to
relief under section 1473.7. [Citation.] To establish ineffective
assistance of counsel, a defendant must demonstrate that his
counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms and that he
was prejudiced by the deficient performance.” (Ogunmowo,
supra, 23 Cal.App.5th at p. 75; see Strickland v. Washington
(1984) 466 U.S. 668 (Strickland).)
Effective January 1, 2019, the Legislature amended section
1473.7 to clarify that a “finding of legal invalidity may, but need
not, include a finding of ineffective assistance of counsel.”
(§ 1473.7, subd. (a)(1).) Therefore, a defendant asserting error
based on an attorney’s erroneous advisement need not prove the
elements of a claim for ineffective assistance of counsel. (People
v. Camacho (2019) 32 Cal.App.5th 998, 1008.) Instead, a
defendant seeking relief via a motion under section 1473.7 must
show prejudicial error which is “not limited to the Strickland test
of prejudice, whether there was reasonable probability of a
different outcome in the original proceedings absent the error.”
12
(Id. at p. 1009.) To establish prejudice, a defendant must show
by a preponderance of the evidence that he would not have
entered the plea had he known about the immigration
consequences. (Id. at pp. 1010–1011; see People v. Martinez
(2013) 57 Cal.4th 555, 565 (Martinez) [defendant may show
prejudice by “convinc[ing] the court [that he] would have chosen
to lose the benefits of the plea bargain despite the possibility or
probability deportation would nonetheless follow”]; see Lee v.
U.S. (2017) 137 S.Ct. 1958, 1965 [a defendant can show prejudice
by demonstrating a reasonable probability he would not have
pled guilty and would have insisted on going to trial, but for
counsel’s errors].)
III. Defendant Failed to Establish He is Entitled to Relief
A. No Ineffective Assistance of Counsel
Appellant argues his counsel Wiseman failed to advise of
the actual immigration consequences of his plea and failed to
investigate and defend against such immigration consequences
by pursuing an immigration-neutral plea deal, resulting in
ineffective assistance of counsel. Relying on Padilla v. Kentucky
(2010) 559 U.S. 356 (Padilla), appellant argues his trial counsel’s
performance was defective.
We find Padilla not instructive because appellant pled
guilty 21 years before the Padilla opinion was issued. In Chaidez
v. United States (2013) 568 U.S. 342, the Supreme Court
concluded that Padilla “announced a new rule” by imposing an
obligation on trial counsel to understand and accurately explain
the immigration consequences of a plea to a defendant before the
entry of that plea. (Id. at p. 358.) The Supreme Court further
held Padilla could not be applied retroactively to cases that were
13
final at the time the opinion in Padilla was issued. (Id. at
pp. 344, 358.) Therefore, appellant’s trial counsel had no
affirmative duty in 1989 to research and advise appellant of the
actual immigration consequences of his plea. (See id. at
pp. 356-358.) Wiseman’s representation did not fall below the
then-contemporary objectively reasonable standard of practice.
Appellant argues that even prior to Padilla, California
courts imposed a duty on trial counsel to inform clients of the
immigration consequences of their pleas. He relies on People v.
Soriano (1987) 194 Cal.App.3d 1470 (Soriano). We do not read
Soriano to so hold. In that case, the defendant submitted a
declaration stating he had informed his attorney he was an
immigrant, and his attorney told him if he pled guilty, he would
serve only eight months in county jail. (Id. at p. 1478.) The
defendant in Soriano had asked his attorney if he would be
deported if he pled guilty, and she said he would not. (Ibid.) The
defendant stated he pled guilty based on these express
assurances. (Ibid.) The Soriano court determined trial counsel’s
erroneous advice—that the guilty plea would not make him
deportable—in response to the defendant’s specific inquiries
about immigration consequences constituted ineffective
assistance of counsel. (Id. at p. 1482.)
Appellant’s reliance on Soriano is misplaced because the
facts here are distinguishable. Unlike the defendant in Soriano,
it is not appellant’s position that he specifically asked his counsel
if his guilty plea would make him deportable and in response he
received erroneous advice. In other words, appellant did not
enter his guilty plea based on false assurances by Wiseman. We
believe Soriano is properly limited to its facts. We base this on
the Soriano court’s invocation of the commentary to the American
14
Bar Association’s Standards for Criminal Justice, standard
14-3.2, which states “ ‘[w]here the defendant raises a specific
question concerning collateral consequences (as where the
defendant inquiries about the possibility of deportation), counsel
should fully advise the defendant of these consequences.’ ”
(Soriano, supra, 194 Cal.App.3d at p. 1481.) We find no
ineffective assistance where, as here, counsel allegedly failed in
1989 to give unsolicited advice.
B. No Prejudice
Next, we find no merit to appellant’s assertion that it was
reasonable to expect he could have pled to an alternative,
immigration-neutral offense had Wiseman pursued one. There is
no evidence in the record indicating the prosecutor would have
considered, or the trial court would have accepted, a different
plea. Appellant’s speculation that another plea could have been
negotiated “ ‘is not evidence, less still substantial evidence.’ ”
(People v. Waidla (2000) 22 Cal.4th 690, 735; see People v. Tapia
(2018) 26 Cal.App.5th 942, 953–954.)
Even if Wiseman’s advisement was insufficient, we
independently find appellant’s claim fails because he has not
shown prejudice. At the outset, we note appellant’s motion to
vacate was based primarily on his declaration and then oral
testimony that he did not understand the consequences of the
plea. However, the trial court expressly found appellant not
credible. We do not reevaluate witness credibility. (In re
Resendiz (2001) 25 Cal.4th 230, 249, abrogated in part on other
grounds in Padilla, supra, 559 U.S. at p. 370.)
In addition, appellant’s assertion that he would not have
pled but for Wiseman’s failure to advise him of adverse
immigration consequences is not enough. (Lee v. U.S., supra,
15
137 S.Ct. at p. 1967.) “Courts should not upset a plea solely
because of post hoc assertions from a defendant about how he
would have pleaded but for his attorney’s deficiencies.” (Ibid.)
There must also be “contemporaneous evidence to substantiate a
defendant’s expressed preferences.” (Ibid.) Among the many
factors to be considered are defendant’s ties to the United States,
the presence or absence of other plea offers, the seriousness of the
charges in relation to the plea bargain, the defendant’s criminal
record, the defendant’s priorities in plea bargaining, the
defendant’s aversion to immigration consequences, and whether
the defendant had reason to believe that the charges would allow
an immigration-neutral bargain that a court would accept.
(Martinez, supra, 57 Cal.4th at p. 568.) A defendant’s probability
of success at trial also forms part of this inquiry, as a defendant
would be less likely to insist on going to trial if the consequences
of trial lead to a worse sentence than compared to the plea. (See
Lee v. U.S., at p. 1966.)
Our review of the Lee and Martinez factors does not
convince us appellant would have opted for trial had he been
properly advised of the immigration consequences. There was a
significant disparity between the sentence he received on his plea
and the lengthier sentencing exposure he faced had he been
convicted at trial; the trial court had noted the People’s offer of
six months was “the minimum” and that he “may be looking at
four years” in prison if he opted for trial. The court also indicated
his sentence would “go up” if appellant had prior convictions, and
appellant soon disclosed the existence of two priors. Based on our
review of the record, appellant had more than two priors under
several different names. That fact may have motivated appellant
16
to agree to a quick plea rather than risk discovery of the full
extent of his prior convictions.
“It is up to the trial court to determine whether the
defendant’s assertion is credible, and the court may reject an
assertion that is not supported by an explanation or other
corroborating circumstances.” (Martinez, supra, 57 Cal.4th at
p. 565.) Here, the trial court found appellant not credible when
he testified he had no idea of the adverse immigration
consequences because no attorney had ever told him so. The trial
court’s finding is supported by the record. Notably, when asked
by the prosecutor if he “used those 12 to 15 names . . . because
[he] knew that [he was] in danger of being deported due to [his]
convictions,” appellant said yes.
Against this backdrop is appellant’s countervailing fear of
violence against him if he returned to El Salvador. But he does
not state that he told his attorney anything about this fear so
that she could have tried to mitigate the consequences of the plea
or at least given him more explicit advice. This evidentiary gap
bolsters the trial court’s conclusion that appellant was not
credible when he declared he would not have pled guilty had he
not been ignorant of the immigration consequences of the plea.
We also note the transcript of the 1989 pre-trial hearing
before Judge Kamins shows appellant felt comfortable enough to
interrupt the court proceedings to ask questions and he conferred
off the record with defense counsel multiple times. The record
also shows appellant voiced things he was unsure about: he
asked about fingerprinting the bag of cocaine, he clarified
whether he was charged with sale of cocaine as opposed to
possession for sale. However, after the prosecutor advised him of
the immigration consequences of the conviction, the record shows
17
appellant did not interrupt to ask questions or confer with
counsel. Instead, when asked if he understood, appellant
affirmatively stated he did. This serves as substantial evidence
supporting the trial court’s finding that appellant’s priority at the
time of the plea was not to avoid immigration consequences.
Undoubtedly, removal from the United States after
creating a life and family here for over three decades is a
nightmare. However, the test for prejudice considers what
appellant would have done had he been properly advised of
immigration consequences at the time of the plea, and not the
consequences appellant faces now in 2021. (See Martinez, supra,
57 Cal.4th at p. 564.)
Exercising our independent review while deferring to the
trial court’s credibility determinations and factual findings, we
conclude appellant did not meet his burden for relief under
section 1473.7.
IV. The Trial Court Did Not Use an Incorrect Standard in
Denying the Motion
In his briefing, appellant sporadically argues the trial court
did not use a preponderance of the evidence standard in making
its findings and instead held appellant to a different standard of
proof by using an “incorrect test.” Without explaining the term,
appellant argues the trial court ignored “the overwhelming
evidence that favored granting the motion.” However, the
evidence, in a nutshell, was 1) appellant did not ask about
immigration consequences; 2) his counsel did not recall and her
notes did not show whether she advised him about the
immigration consequences at a time when such unsolicited advice
was not deemed ineffective assistance; 3) he entered a guilty plea
in a bargain which saved him three years in state prison; 4) he
18
had sustained similar convictions before and after this plea; 5) he
unconvincingly averred without supporting independent evidence
that he never would have taken the plea because of his ignorance.
Under the Martinez factors, this evidence is neither
overwhelming nor indicative that the trial court held appellant to
an incorrect test.
DISPOSITION
The order is affirmed.
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
19
Filed 6/1/21
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303413
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA002067)
v.
ORDER CERTIFYING OPINION
CARLOS CASTILLO FOR PUBLIATION
Defendant and Appellant. [NO CHANGE IN JUDGMENT]
THE COURT:
The opinion in the above-entitled matter filed on May 12, 2021, was not
certified for publication in the Official Reports. For good cause, it now
appears that the opinion should be published in the Official Reports and it is
so ordered.
There is no change in the judgment.
________________________________________________________________________
BIGELOW, P. J. GRIMES, J. STRATTON, J.