People v. Cesena CA4/2

Filed 2/4/22 P. v. Cesena CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076213
v. (Super.Ct.No. FWV17002606)
JESUS ARMANDO CESENA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Shahla Sabet,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Eric A.
Swenson, James H. Flaherty III, and Kaleigh L. Ragon, Deputy Attorneys General, for
Plaintiff and Respondent.
1
INTRODUCTION
In 2017, defendant and appellant Jesus Armando Cesena pled guilty to one count
of possession for sale of a controlled substance. (Health & Saf. Code, § 11351.) In 2019,
he filed a motion pursuant to Penal Code1 section 1473.7 to withdraw his plea and vacate
his conviction on the grounds that his attorney failed to investigate the immigration
consequences of his plea, failed to inform him of the actual immigration consequences of
his plea, and failed to seek an immigration-safe plea. The trial court denied the motion.
Defendant appeals, contending his plea counsel provided ineffective assistance of
counsel. Specifically, he faults his counsel for failing to advise him of the specific
immigration consequences of his plea and for failing to negotiate a plea bargain with no
adverse immigration consequences. He also argues that he did not have a meaningful
understanding of the immigration consequences of his plea. In addition, defendant claims
the court failed to conduct a hearing pursuant to Penal Code section 1473.7 since it
prevented him from calling any witnesses, and it also erred by basing its denial, in part,
on the weight enhancement. (Health & Saf. Code, § 11370.4, subd. (a)(1).) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
On June 6, 2017, the Rialto Police Department Narcotics Unit executed a search
warrant at a residence. Prior to the execution of the search warrant, officers observed a
white truck driven by defendant leave the location. The officers followed defendant and
1 All further statutory references will be to the Penal Code unless otherwise noted.
2 The factual background is taken from the police report, which the parties
stipulated to be the factual basis for the plea.
2
observed him meet up with a gray Jeep. He exited the truck, met with the occupants of
the Jeep, and then walked back to the truck. He appeared to put an object in the truck bed
before driving away. Defendant drove back to the residence, and the police then
executed the search warrant. An officer had a narcotics police dog sniff defendant’s
truck, and the dog alerted him to a tire that was in the truck bed. He cut open the tire and
found 15 rectangular objects. The officer cut into one of the objects and observed an off-
white substance, which tested positive for cocaine. The combined total weight of the
packages was 16,194 grams (approximately 35 pounds). The dog also alerted the police
to a container in the residence garage. The container had 3,777.4 grams (over eight
pounds) of heroin in it.3
On June 29, 2017, defendant was charged by felony complaint with possession for
sale of a controlled substance—heroin (Health & Saf. Code, § 11351, count 1), and it was
alleged that the substance exceeded one kilogram by weight (Health & Saf. Code,
§ 11370.4, subd. (a)(1)). The complaint also charged defendant with transportation or
sale of a controlled substance—fentanyl (Health & Saf. Code, § 11352, subd. (a), count
2), and another count of possession for sale of a controlled substance—fentanyl (Health
& Saf. Code, § 11351, count 3).
On October 3, 2017, defendant entered a plea agreement and pled guilty to count
1, in exchange for a term of three years in county prison and the dismissal of the
remaining counts and allegation. Defendant initialed the box next to the statement: “I
3 Some of the substances later tested positive for fentanyl.
3
understand that if I am not a citizen of the United States, deportation, exclusion from
admission to the United States, and denial of naturalization may, and for certain offenses
will, result from a conviction of the offense(s) to which I plead guilty.” Defendant also
initialed the box next to the statement: “I have had sufficient time to consult with my
attorney concerning my intent to plead guilty/no contest to the above charge(s). . . . My
lawyer has explained everything on this Declaration to me, and I have had sufficient time
to consider the meaning of each statement. I have personally placed my initials in certain
boxes on this Declaration to signify that I fully understand and adopt as my own each of
the statements which correspond to those boxes.” He further initialed the box next to the
statement: “I can read and understand English.” Defendant signed his name on the plea
form beneath the statement: “I declare under the penalty of perjury under the laws of the
State of California that the foregoing is true and correct . . . .”
Defendant’s plea counsel also signed the form beneath the statement: “I am
above-named Defendant’s attorney in the above-entitled criminal action; that I personally
read and explained the contents of the above Declaration to the Defendant; that I
personally observed the Defendant sign said Declaration; that I concur in the Defendant’s
withdrawal of his/her plea(s) of not guilty; and that I concur in the Defendant’s plea(s) of
guilty/nolo contendere (no contest) and or admissions to the charge(s) as set forth by the
Defendant in the above Declaration.”
At the plea hearing on October 3, 2017, the court confirmed with defendant that he
signed and initialed the plea form after going over everything on the form with his
attorney. The court asked if he understood everything on the form, including the
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potential penalties and punishments for the offense he was pleading to. The following
colloquy occurred:
“THE COURT: Have you had enough time with your attorney to discuss this
case, including all of your rights, defenses, penalties, and any future consequences that
may occur from the plea?
“THE DEFENDANT: Yes, your Honor.
“THE COURT: Okay. And do you understand, finally, if you’re not a citizen of
the United States consequences of conviction will include deportation, exclusion from
admission to the United States, or denial of naturalization under the laws of the United
States? Do you understand that?
“THE DEFENDANT: Yes, your Honor.
“THE COURT: All right. Thank you.”
The court also confirmed with counsel that he went over the plea form with
defendant and was satisfied that defendant understood everything on the form. The court
then found that defendant understood the nature of the charge, the consequences for the
charge and his constitutional rights, and that he was knowingly, intelligently, and
voluntarily waiving his rights. Defendant then pled guilty to count 1, and the parties
stipulated that the police report could be used to establish the factual basis for the plea.
The court found that defendant entered his plea freely, knowingly, and intelligently.
Pursuant to the plea agreement, the court sentenced him to county prison for three years
and dismissed the remaining counts and allegation.
5
On December 4, 2019, defendant filed a motion to vacate his conviction pursuant
to section 1473.7. He asserted that he qualified for relief because his plea counsel’s
representation fell below an objective standard of reasonableness since he did not
adequately investigate the immigration consequences of the guilty plea, did not tell him
that his plea unequivocally would result in deportation, and did not attempt to obtain an
immigration-safe plea bargain. Defendant further argued that he was prejudiced because
had he been told he would be deported, he would not have pled guilty. He would have
instead asked to seek an immigration-safe plea and “done more days of jail,” or gone to
trial.
In support of the motion, defendant submitted a declaration from his current
attorney affirming that his current attorney was informed plea counsel had passed away,
that he was unable to obtain defendant’s client file, and that he was informed the file may
have been destroyed. Defendant also attached exhibits, including a copy of the
complaint, a copy of his plea agreement, a copy of the minute order from the plea
hearing, a copy of the reporter’s transcript from the plea hearing, a copy of a notice to
appear from the Department of Homeland Security saying he was subject to removal
because of his conviction, a copy of his marriage license, copies of his children’s birth
certificates, support letters, a copy of his resume, and a copy of his tax returns.
Defendant submitted declarations from two purported law experts, explaining
immigration law and criminal defense, as well as declarations from his sister, wife, and
brother-in-law.
6
Defendant also submitted a declaration stating he was a Mexican citizen and legal
permanent resident of the United States (he gained status through his wife), he had lived
in the United States since he was eight years old, he attended schools here and obtained
his GED, he had four children who were United States citizens, he had paid taxes since
2010, and he was currently detained in immigration custody. Defendant said his plea
counsel told him that going to trial was a risk. Counsel said defendant would be looking
at maybe nine years in prison, and he would be sent to a state prison that would probably
be far from his family. Counsel said he could try to work out a deal where defendant
would do less time in county jail so his family could visit him. Defendant said he asked
his counsel, “how this would affect [his] greencard because [he] was [a] legal permanent
resident.” Defendant said his counsel told him he was not an immigration attorney and
did not know, and that they needed to “work out the criminal case first, and then worry
about the immigration case.” Subsequently, his counsel said he got the prosecutor to
agree to dismiss some of the charges and that defendant would serve three years instead
of nine. Counsel said this was the best he could do for him. Defendant agreed to take the
deal. He filled out some paperwork, and counsel told him where to sign and initial.
Defendant stated in his declaration that he wished he had used a translator, alleging that
even though he spoke English because he had lived in the United States since he was a
kid, Spanish was his “best language.”
Defendant said they then went back to court, and he pled guilty. In his
declaration, defendant stated, “I remember the judge asking me if I understood
everything. Everything happened so fast.” Defendant also said he signed a felony plea
7
form and stated, “I do see that there is a line that said that certain convictions may result
in deportation and other convictions would result in deportation if you are a non-Citizen.”
He also declared, “I do remember the judge telling me in court that with this crime I
would be deported. I thought he was just going over the paperwork on the forms. It
doesn’t make sense to me that he told me then I would be deported, or denied
naturalization or not be able to be admitted to the United States because of this crime,
because he had just told me that I wasn’t going to be on probation or parole.” Defendant
also said he would not have taken the deal if his counsel had told him he would be
deported and separated from his family.
The prosecutor filed an opposition to defendant’s motion to vacate, contending the
record established that plea counsel and the court told defendant that if he pleaded guilty,
he would face deportation, exclusion from admission to the United States, and denial of
naturalization due to his conviction. The prosecutor also argued that the declarations
submitted by defendant and his family members were not credible but were speculative
and should be rejected as self-serving and unreliable, or inadmissible as hearsay. The
prosecution further argued that there was no prejudice, since there was no
contemporaneous evidence that deportation was the determinative issue in defendant’s
decision whether or not to plead. The asserted prejudice was “nothing more than the
Defendant choosing to ignore the accurate advisements he received in court.” Despite
knowing he could be deported, defendant “chose to believe it would not happen to him.”
Additionally, the prosecution argued that defendant had no reason to believe the charge
would allow an immigration-neutral deal. He was found with over 40 pounds of heroin
8
and fentanyl, thus showing he was a major narcotics trafficker who was not going to
receive more favorable treatment in his plea bargain.
On August 14, 2020, the court held a hearing on the motion. The court stated that
it reviewed the moving and opposing papers, along with the declarations submitted, and it
noted that it presumed the declarations admissible and considered each declaration with a
“different amount of veracity or credibility.” The court noted that it would accept all the
declarations, even though the prosecutor objected, and that it would have to evaluate
credibility. Defense counsel stated defendant was entitled to a hearing by statute. The
court agreed he was entitled to a hearing, but said the issue was who defendant could call
to testify. The court stated that it would permit percipient witness testimony, as long as it
was not cumulative to the contents of the witness’s declaration. Otherwise, only the
prosecutor could call the witnesses, who had submitted declarations, to cross-examine
them or question their credibility. The court also stated that if defense counsel had any
new witnesses or information the court did not have by way of declaration, it would allow
counsel to call such witnesses.
The court stated its tentative decision was to deny the motion. On the ineffective
counsel grounds, the court intended to deny the motion since it did not have a declaration
from plea counsel, and he could not testify as to what transpired. Rather, the court said it
only had the self-serving declaration of defendant that accused an attorney who was
deceased of doing something the court did not know in fact occurred. The court noted
that the accusations were not supported by the discussions in court between defendant
and the judge. It noted that numerous defendants in these cases would come back and
9
claim, for example, lack of understanding of the language. However, defendant had been
here since he was eight. It also noted that the attorney in this case had practiced criminal
law for years. Thus, the court did not have sufficient evidence to find ineffective
assistance of counsel. As to prejudice, the court noted that the amount of drugs involved
was very large; thus, there was not much a defense attorney could do to save a client from
immigration consequences, especially in light of the fact that the judge “very clearly on
the record” asked defendant if he understood he would be deported, and defendant said
yes. The court also confirmed that defendant had enough time to talk to his lawyer, and
his lawyer explained everything to him. The prosecutor reiterated that defendant was told
he could be deported, and he said he understood. The prosecutor also noted that
defendant was “not going to be done . . . any favors based on his own conduct,” since he
appeared to be “a major narcotics trafficker, not merely a street-level dealer moving small
amounts of drugs.” The court then noted that the fact that plea counsel was deceased put
it “in a binding position.” It specifically put on the record that “because he’s not
available and deceased, the defendant and/or his supporters can say anything they want
because he’s not here to defend himself.” The court ultimately denied the motion.
DISCUSSION
I. Defendant Has Failed to Establish He Is Entitled to Relief
Defendant argues the court’s denial of the motion to vacate his conviction should
be reversed. He contends the evidence he presented established that he, through his own
error or his attorney’s error, failed to meaningfully understand the immigration
10
consequence of his plea was mandatory deportation. We conclude the court properly
denied the motion.
A. The Court Held a Hearing and Permitted Defendant to Call Witnesses
At the outset, we note defendant’s claim that the trial court committed reversible
error by denying his section 1473.7 motion without an evidentiary hearing. He claims the
court stated the prosecution, but not the defense, was entitled to call witnesses, and it
limited defense counsel to the declarations and supporting documents in the petition. The
record does not support this claim, and defendant’s argument mischaracterizes the court’s
ruling on this issue.
Section 1473.7, subdivision (d), provides that “[a]ll motions shall be entitled to a
hearing.” The court here held a hearing on the motion. Contrary to defendant’s claim,
the court did not state that only the prosecution and not the defense was entitled to call
witnesses. The court expressly said the defense could call witnesses, as long as their
testimony was not redundant or cumulative. Defendant filed a voluminous motion, with
declarations and exhibits, and the court had reviewed everything. The court initially
stated that his motion was “not entitled to a hearing, unless [he had] witnesses that were
percipient. . . . [¶] Otherwise, for individuals coming and rendering opinion, [he] already
submitted declarations.” When defense counsel argued that defendant was entitled to a
hearing according to the statute, the court clarified, stating, “Yes. You’re entitled to a
hearing, but who can you call? That’s the issue I’m talking about.” When defense
counsel named the witnesses he wanted to call, the court asked what they would testify to
that was not in their declarations. The court stated, “if you have new witnesses, new
11
information that I don’t have it by way of declaration, I will certainly allow you to call
[them].”
Defendant cites People v. Rodriguez (2021) 60 Cal.App.5th 995 (Rodriguez),
People v. Ruiz (2020) 49 Cal.App.5th 1061 (Ruiz) and People v. Fryhaat (2019) 35
Cal.App.5th 969 (Fryhaat), in support of his position. However, these cases are
distinguishable. Defendant cites Rodriguez to show that the “court conducted [an]
evidentiary hearing at which defense witnesses testified.” However, in that case, the
court took testimony from three defense witnesses—the defendant and the two public
defenders who represented him. The defendant apparently did not file written
declarations from the two public defenders with his section 1473.7 motion to vacate, so
the testimony they gave presented new evidence. (Rodriguez, supra, 60 Cal.App.5th at
pp. 999-1001.) In the instant case, defendant wanted to have his sister and an
immigration expert testify. However, both witnesses had already submitted written
declarations, and their testimony would have been cumulative to what defendant had
already submitted with his motion.
In Ruiz, the trial court barred the defendant’s section 1473.7 motion since she had
lost a prior 2017 motion to vacate that contained a reference to the 2017 version of
section 1473.7. The appellate court ruled this was error since the motion was based on
the 2019 version of the statute and was therefore not the same motion. Thus, the
appellate court reversed and remanded the matter for the court to consider the motion on
the merits. (Ruiz, supra, 49 Cal.App.5th at pp. 1068, 1070.) In Fryaat, the trial court
summarily denied the defendant’s section 1473.7 motion without a hearing, without his
12
presence, and without appointed counsel. (Fryhaat, supra, 35 Cal.App.5th at p. 975.)
Thus, this court reversed the denial and remanded with directions to evaluate the
defendant’s request for appointment of counsel, to appoint counsel if appropriate, and to
consider the motion on its merits. (Id. at p. 984.) Neither Ruiz nor Fryhaat support
defendant’s claim that the trial court’s denial here must be reversed and the matter
remanded for another hearing. Contrary to defendant’s arguments, nothing in the statute
expressly sets forth the scope of the hearing required. The court here properly held a
hearing, heard from all relevant witnesses (through their declarations), offered to hear
from any additional witnesses from either side, and considered the motion on the merits.
Moreover, even if the court erred in not allowing live testimony, any error was
harmless since the court had already accepted testimony from the proffered witnesses
through their declarations, which were not scrutinized by vigorous cross-examination.
We see no reasonable possibility that the result would have been different with live
testimony restating what was already in the declarations. (People v. Watson (1956) 46
Cal.2d 818, 836.)
B. Standard of Review
We apply the independent standard of review to an order denying a motion to
vacate a conviction under section 1473.7. (People v. Vivar (2021) 11 Cal.5th 510, 524-
528 (Vivar).) “In section 1473.7 proceedings, appellate courts should . . . give particular
deference to factual findings based on the trial court’s personal observations of witnesses.
[Citation.] Where, as here, the facts derive entirely from written declarations and other
documents, however, there is no reason to conclude the trial court has the same special
13
purchase on the question at issue; as a practical matter, ‘[t]he trial court and this court are
in the same position in interpreting written declarations’ when reviewing a cold record in
a section 1473.7 proceeding. [Citation.] Ultimately it is for the appellate court to decide,
based on its independent judgment, whether the facts establish prejudice under section
1473.7.” (Id. at pp. 527-528, fn. omitted.)
C. Defendant Has Failed to Establish Ineffective Assistance of Counsel
Section 1473.7, which became effective on January 1, 2017, provides that a person
who is no longer imprisoned may move to vacate a judgment if 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.” (§ 1473.7, subd. (a)(1).)
Thus, a defendant is required to demonstrate that he or she suffered prejudicial error.
(Ibid.) “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).” (§ 1473.7, subd. (e)(1).)
“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.”
14
(People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75; see Strickland v. Washington
(1984) 466 U.S. 668, 687-688.) We note that in 2018, the following language was added
to section 1437.7, subdivision (a)(1): “[a] finding of legal invalidity may, but need not,
include a finding of ineffective assistance of counsel.” (See People v. DeJesus (2019) 37
Cal.App.5th 1124, 1133.)
1. Defendant has failed to establish his counsel’s performance was deficient
Defendant claims his counsel failed to inform him that, as a result of his plea to
possession for sale of a controlled substance, the immigration consequences were
mandatory deportation, no reentry to the United States, and no naturalization. He further
claims his counsel failed to investigate the impact of the plea on his immigration status
and did not attempt to negotiate an immigration-safe plea and have him plead to a non-
deportable offense or delete the drug name from the record of conviction to render him
undeportable. Defendant specifically claims his counsel told him he would be out of
custody and back with his family sooner if he took the plea deal and misadvised him that
he needed to work the criminal case out first, and then worry about the immigration case
later. Defendant claims he was prejudiced since he would not have pled guilty if he had
understood he was subject to mandatory deportation and would be unable to return to the
United States, thereby separating him from his family, job, and country.
Defendant failed to meet his burden of establishing by a preponderance of the
evidence any prejudicial error on plea counsel’s part that damaged his ability to
understand, defend against, or knowingly accept the immigration consequences of his
plea. (§ 1473.7, subds. (a)(1) & (e)(1).) We note the ease with which a defendant may
15
claim his counsel erred. (See In re Alvernaz (1992) 2 Cal.4th 924, 938.) However, “[a]n
allegation that trial counsel failed to properly advise a defendant is meaningless unless
there is objective corroborating evidence supporting appellant’s claimed failures.”
(People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 223-224.) Thus, defendant’s claims
require “corroboration and objective evidence because a declaration by defendant is
suspect by itself.” (Id. at p. 224.) “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. Judges should instead look to contemporaneous evidence to substantiate a
defendant’s expressed preferences.” (Lee v. United States (2017) U.S. [137 S.Ct.
1958, 1967]; see People v. Mejia (2019) 36 Cal.App.5th 859, 872 [“[i]n a postconviction
setting, courts should not simply accept a defendant’s statement of regret regarding the
plea, courts should also ‘look to contemporaneous evidence to substantiate a defendant’s
expressed preferences.’ ”].)
Defendant has presented no such objective, corroborating evidence here. The only
relevant evidence he offers is his self-serving declaration and the declarations of his wife,
sister, and brother-in-law. Generally, self-serving declarations lack trustworthiness.
(People v. Duarte (2000) 24 Cal.4th 603, 611.) In other words, we are not bound to give
full credence to the statements in defendant’s declaration because of his obvious interest
in the outcome of the proceeding, and we would say the same about statements by his
wife, sister, and brother-in-law. (See People v. Beck (1961) 188 Cal.App.2d 549, 553.)
Moreover, we agree with the trial court’s assessment that defendant and his supporters
could say anything they wanted “because [plea counsel was] not here to defend himself.”
16
We realize that defendant was unable to obtain a declaration from his plea counsel since
counsel passed away, and that defendant was unable to obtain counsel’s case file.
However, the unfortunate circumstance of his plea counsel’s passing does not relieve
defendant of his burden of proof. (§ 1473.7, subd. (e)(1).)
Furthermore, we find defendant’s statements in his declaration that he pled guilty
not knowing he would be deported not credible in light of the signed plea agreement and
the court’s own taking of his plea. Defendant initialed the box next to the statement in
the plea agreement stating: “I understand that if I am not a citizen of the United States,
deportation, exclusion from admission to the United States, and denial of naturalization
may, and for certain offenses will, result from a conviction of the offense(s) to which I
plead guilty.” (Italics added.) Defendant initialed the boxes verifying that his attorney
explained everything in the agreement to him, and he fully understood everything. The
record also shows that when the court was taking his guilty plea, it specifically told
defendant that his conviction would result in deportation. The court said, “And do you
understand, finally, if you’re not a citizen of the United States consequences of
conviction will include deportation, exclusion from admission to the United States, or
denial of naturalization under the laws of the United States? Do you understand this?”
Defendant said, “Yes, your Honor.” Furthermore, in defendant’s declaration, he
expressly conceded, “I do remember the judge telling me in court that with this crime I
would be deported.” Additionally, the court confirmed with plea counsel that he went
over the form with defendant, and defendant understood everything on it. The court
found that defendant read and understood the form, understood the charge to which he
17
was pleading and the consequences for the charge, and was freely and knowingly
entering the plea.
Next, we turn to defendant’s argument that his plea counsel ineffectively
represented him by failing to make a counter offer or negotiate an immigration-safe plea
deal. He specifically claims his counsel should have attempted to negotiate an
immigration-safe plea “by pleading to a different offense [that was non-deportable], or by
striking the name of the drug from the record of conviction in a Paulus4 defense and not
stipulating to the police report as a basis for the guilty plea to render the plea immigration
safe.” People v. Perez (2018) 19 Cal.App.5th 818 (Perez) is instructive in this regard. In
that case, as in this one, there was “no indication in the record that the prosecution was
willing to agree to an immigration safe disposition. Similarly, there [was] no suggestion
that [the defendant’s] counsel did not attempt to negotiate such a disposition.” (Id. at
p. 830.) Because “[a]n appellant has the burden of establishing, based on the record on
appeal and based on facts, not speculation, that counsel rendered ineffective assistance of
counsel,” the lack of any evidence regarding counsel’s negotiations or lack thereof was
fatal to the defendant’s attempt to vacate his conviction on those grounds. (Ibid.)
The same is true here. Defendant only speculates, with no corroborating evidence,
that his plea counsel did not attempt to secure an immigration-safe plea and that the
prosecutor would have agreed to such. Defendant offered this speculative statement in
his declaration: “I don’t think [my counsel] made any immigration safe plea offers
4 Matter of Paulus (B.I.A. 1965) 11 I. & N. Dec. 274 (Paulus).
18
because he didn’t know about immigration . . . .” (Italics added.) Defendant also
presented declarations by two putative experts that an immigration-safe plea might have
been available. We note that one of the expert’s declarations was based on his review of
the other declarations submitted with the motion, which were suspect. (See ante.)
Moreover, the mere fact that immigration-safe pleas have been negotiated in other cases,
or that one might have existed here, is not evidence that plea counsel failed to negotiate
for such a plea.
Additionally, in this case, it is clear that counsel negotiated for the best disposition
that he could get. Counsel was able to secure a plea in which defendant was permitted to
plead to only one count of three very serious charges and had a significant weight
enhancement dismissed as part of the agreement. With over 40 pounds of heroin and
fentanyl, it is difficult to imagine any non-deportable offense that defendant would be
permitted to plead to in lieu of the charged offenses. Furthermore, there was no
indication in the record that the prosecution was willing to agree to an immigration-safe
plea. (Perez, supra, 19 Cal.App.5th at p. 830.) In fact, the prosecutor at the motion
hearing suggested the opposite. Although the prosecutor did inform the court that he had
no information of any counteroffers made (e.g., in the district attorney’s case file), he also
said that defendant “was not going to be done . . . any favors” in this case based on the
severity of the charges and the fact that he “appeared to be a major narcotics trafficker,
not merely a street-level dealer moving small amounts of drugs.”
Citing Paulus, supra, 11 I. & N. Dec. 274, defendant contends his counsel should
have attempted to negotiate to strike the name of the drug from the record of conviction
19
and not stipulate to the police report as a basis for the guilty plea in order to render the
plea immigration safe. However, this claim lacks merit. In Paulus, an alien was
convicted of violating a California statute that made it a crime to “ ‘offer unlawfully to
sell and furnish a narcotic . . . and . . . then sell and deliver . . . a substance . . . in lieu of
such narcotic.’ ” (Paulus, supra, 11 I. & N. Dec. at p. 275.) Noting “the record being
silent as to the narcotic involved in the conviction” and the fact California’s definition of
“narcotic” differed from that under federal law, the Board of Immigration Appeals upheld
an order terminating deportation proceedings because “it [could not] be said for
immigration purposes, that [the defendant] has been convicted of a law relating to
narcotic drugs.” (Ibid.)
Paulus involved a factual dispute over the nature of the drug the alien had been
selling or furnishing. In contrast, defendant here was charged with crimes specifically
identifying the controlled substances as heroin and fentanyl. Moreover, defendant
presented no evidence that simply striking the name of the drugs involved here would
have protected him from being deported, or that the prosecution would have agreed to
strike the name of the drugs from the record.
2. Defendant has failed to establish prejudice
Even assuming his counsel did err in his representation, defendant has failed to
establish that he was prejudiced. He argues that he would not have taken the plea deal if
he had known the consequence of eventually being deported because of his four children,
his home, and his life in the United States. Defendant’s declaration contains the only
direct evidence presented as to whether he would have taken the plea had he been aware
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of the immigration consequences. However, “ ‘a defendant’s self-serving statement—
after trial, conviction, and sentence—that with competent advice he or she would have
accepted [or rejected] a proffered plea bargain, is insufficient in and of itself to sustain
the defendant’s burden of proof as to prejudice, and must be corroborated independently
by objective evidence.’ ” (People v. Bravo (2020) 58 Cal.App.5th 1161, 1171, overruled
in part on other grounds, as stated in Vivar, supra, 11 Cal.5th at p. 526.) We note
defendant did not state in his declaration that he told his plea counsel his priority was to
remain in the United States with his family and job, in order for his counsel to try to
mitigate the consequences of the plea.
Defendant did state in his declaration that he would not have accepted the plea
deal if he knew he was going to be deported, and he “would have gladly done more days
of jail” or “even risked going to trial.” First, defendant did know that he would be
deported because the court expressly told him so. Second, defendant’s statement lacks
credibility. Defendant was charged with two counts of possession for sale of a controlled
substance—heroin (Health & Saf. Code, § 11351, counts 1 & 3), and it was alleged in
count 1 that the substance exceeded one kilogram by weight (Health & Saf. Code,
§ 11370.4, subd. (a)(1)). Thus, he would have been facing a maximum sentence of nine
years.5 The evidence against him was strong, as the police found him in possession of
5 A person convicted of possession for sale of a controlled substance is subject to
imprisonment for two, three, or four years. (Health & Saf. Code, § 11351.) A person
convicted of transportation or sale of a controlled substance is subject to imprisonment
for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).) A person
convicted of a violation of Health and Safety Code section 11351, where the substance
[footnote continued on next page]
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over 40 pounds of drugs. Pursuant to the plea agreement, defendant pled guilty to count
1, in exchange for a term of only three years in county prison and the dismissal of the
other counts and the weight enhancement.
Under these circumstances, although it is possible, it is not likely he would have
risked going to trial, being convicted of all counts, and facing a lengthy prison term as
well as the same immigration consequences.
D. Defendant Has Failed to Establish His Own Misunderstanding
To the extent defendant is contending he is entitled to relief due to his own lack of
understanding, apart from any error by his counsel, we disagree. He claims “the
declarations, plea form, and plea transcripts showed by a preponderance [he] did not
meaningfully understand the adverse immigration consequences of his plea.” However,
for the same reasons discussed ante, we conclude the record belies his claim. (See
§ I.C.1., ante.) Defendant signed the plea agreement, and he was advised in open court
that his conviction in this case would result in deportation. Moreover, as the court
observed, he clearly understood English.
Defendant claims he was confused by the circumstances. In his declaration, he
stated, “I do remember the judge telling me in court that with this crime I would be
exceeded one kilogram, would receive an additional three years. (Health & Saf. Code,
§ 11370.4, subd. (a)(1).) Defendant could receive up to five years for the Health and
Safety Code section 11352 violation. Defendant could receive one-third the midterm for
one of the Health and Safety Code section 11351 violations, which would add one
additional year. Finally, defendant was subject to an additional three years for the weight
enhancement. This assumes that one of the Health and Safety Code section 11351
violations would be subject to Penal Code section 654.
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deported.” He further said he thought the judge was “just going over the paperwork” and
alleged that it “[didn’t] make sense to me that he told me then I would be deported, or
denied naturalization or not be able to be admitted to the United States because of this
crime, because he had just told me that I wasn’t going to be on probation or parole.”
However, defendant did not ask the court any questions or express any confusion, but
rather confirmed that he understood the consequences of his plea.
Defendant also asserts that he had signed “a similar plea form in 2008 when
charged with a DUI, the charge was reduced, and he was not deported,” and that this
circumstance “add[ed] to [his] confusion.” However, again, defendant did not express
any confusion to his counsel or the court before signing the plea agreement in the current
case, and he assured the court he understood the agreement he was entering and the
consequences of that agreement.
Defendant further claims he was confused because, after he entered the plea, he
was allowed to complete a job assignment before he went to jail, pursuant to a deal his
counsel worked out. He also traveled to Mexico following the plea and was let back into
the United States without issue, and he applied for a replacement green card. However,
these circumstances occurred after he pled guilty. Thus, they had no bearing on his
claimed lack of understanding or confusion about the immigration consequences of his
plea, at the time he entered his plea.
We conclude that defendant failed to meet his burden of establishing by a
preponderance of the evidence that his plea counsel rendered ineffective assistance or that
he (defendant) did not understand the immigration consequences of the plea. Because
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defendant failed to meet his burden of proof, the trial court properly denied the section
1473.7 motion.
We briefly note defendant’s additional claim that the court erred by denying the
motion to vacate, in part, on the ground that there was a large quantity of drugs, since the
weight enhancement (Health & Saf. Code, § 11370.4) was dismissed as part of the plea
agreement. This claim lacks merit because the record shows the court based its denial on
the lack of evidence to prove ineffective assistance of counsel, and the record showed
defendant understood the consequences of his plea. The court commented that with this
type of case, there was little a defense attorney could do to “save the client from
immigration consequences,” and it specifically noted that “the Judge very clearly, very
clearly on the record” told defendant that he would be deported, and defendant said he
understood.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
MENETREZ
J.
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