People v. Novoa

Filed 4/22/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D074888
Plaintiff and Appellant,
v. (Super. Ct. No. FVA018874)
RAUL BENJAMIN NOVOA,
Defendant and Respondent.
APPEAL from an order of the Superior Court of San Bernardino County, John
Nho Trong Nguyen, Judge. Affirmed.
Michael A. Ramos, District Attorney, and Brent J. Schultze, Deputy District
Attorney, for Plaintiff and Appellant.
Anne Lai for Defendant and Respondent.
In March 2003, Raul Benjamin Novoa pled guilty to possession of
methamphetamine for sale (Health & Saf. Code, § 11378). The trial court sentenced him
to 180 days in county jail and three years' probation. In 2012, the United States began
deportation proceedings against Novoa, which are continuing today.
In May 2017, Novoa moved to vacate his 2003 conviction per Penal Code1
section 1473.7. After a lengthy evidentiary hearing, the trial court granted Novoa's
motion.
The People appeal, contending the trial court erred in (1) holding Novoa's trial
counsel to a duty the law did not require and (2) finding Novoa suffered prejudice. In
support of the People's position, they assert the superior court's factual findings were not
supported by substantial evidence. Moreover, they argue laches prohibits Novoa's
motion.
We conclude the People's arguments are without merit, and thus, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Guilty Plea
The record of Novoa's guilty plea and the underlying circumstances of his offense
are less than clear. There is no reporter's transcript of the hearing wherein Novoa pled
guilty. The preliminary hearing transcript, police reports, and probation report present
differing versions of Novoa's actions and statements leading to his arrest. Suffice it to
say, Novoa was arrested on January 13, 2003, and charged with possession for sale of a
controlled substance (methamphetamine) in violation of Health and Safety Code section
11378, possession of a deadly weapon (brass knuckles) in violation of section 12020,
subdivision (a)(1), and vandalism-graffiti in violation of section 594, subdivision (b)(4).
1 Statutory references are to the Penal Code unless otherwise specified.
2
On March 13, 2003, Novoa pled guilty to one count of possession for sale of a
controlled substance as part of a plea agreement. Per that agreement, the district attorney
agreed, in exchange for the guilty plea, that Novoa would be sentenced to 180 days in
county jail, followed by three years' probation. In addition, the district attorney
dismissed the remaining counts. As part of his guilty plea, Novoa signed a written
change of plea form in which he, among other things, waived certain rights. The form
also was signed by Novoa's trial counsel, Sean O'Connor.
As relevant here, the plea form contained a standard immigration advisal
(paragraph 14). O'Connor modified paragraph 14 by crossing out the word "or" and
handwriting the word "and" in its place and crossing out the word "may" and handwriting
the word "will" in its place. The modified paragraph 14 read, "I understand that if I am
not a citizen of the United States, deportation, exclusion from admission to the United
States, or and denial of naturalization may will result from a conviction of the offense(s)
to which I plead guilty/nolo contendere (no contest)." In addition to Novoa signing the
change of plea form, O'Connor signed it as well. In doing so, O'Connor acknowledged
that he was Novoa's attorney, he personally read and explained the contents of the change
of plea form to Novoa, he observed Novoa sign the form, and he concurred with Novoa's
guilty plea.
The trial court sentenced Novoa consistent with the plea agreement.
3
Motion to Vacate
On May 14, 2012, Novoa was convicted of being a felon in possession of a
firearm (former § 12021, subd. (a)(1)). Based on that conviction,2 as well as the
conviction in this case, deportation proceedings were initiated.
On May 19, 2017, Novoa moved, under section 1473.7, to vacate his 2003
conviction. He argued that he pled guilty at the insistence of his trial counsel, which was
"disasterous [sic] from an immigration law perspective." Novoa further alleged
O'Connor did not explain the gravity of the plea and did not take any steps to defend
against the immigration consequences of the conviction. In support of his position,
Novoa maintained that there existed a "long line of California court cases establishing a
Sixth Amendment duty on the part of defense counsel to (1) advise of the specific
immigration consequences of a criminal conviction, and (2) defend against those
consequences by attempting to negotiate an alternative disposition that would not carry
such harmful consequences."
The People opposed the motion, asserting that, in 2003, a criminal defense
attorney was not required to provide immigration advice to a client and the record
established that Novoa knew or should have known that his conviction could have
2 Due to changes in federal law, Novoa's conviction for being a felon in possession
of a firearm is no longer a deportable offense. (See United States v. Aguilera-Rios
(9th Cir. 2014) 769 F.3d 626, 635-636.) Nevertheless, possession of methamphetamine
for sale remains a deportable offense. (See 8 U.S.C. §§ 1101(a)(43)(B),
1227(a)(2)(A)(iii) & (B)(i).)
4
immigration consequences. The People also contended that even if O'Connor deficiently
represented Novoa, Novoa was not prejudiced.
The superior court heard evidence in support of and in opposition to Novoa's
motion. To this end, Novoa, O'Connor, Julie Wu (a law student at UC Irvine School of
Law), Michael Mehr (an expert witness for Novoa), and Adelina Garcia (Novoa's
mother) testified.
Novoa was born in Mexico but came to the United States when he was five or six
years old. His mother, stepfather, and siblings live in the United States as well. Novoa
became a lawful permanent resident of the United States through the Special Immigrant
Juveniles program of the United States Citizenship and Immigration Services.
Novoa was living in foster care when he was arrested in 2003. He was 18 years
old. He remembered appearing in court three or four times in connection with his 2003
arrest. He met O'Connor, his counsel, the second time he appeared in court. Novoa
never met with O'Connor outside of court.
Novoa remembered two plea offers conveyed by O'Connor. The first was an offer
to plead guilty in exchange for a prison sentence of two to three years. Novoa rejected
this offer.
Regarding the plea offer Novoa did accept, Novoa recalled receiving that offer the
third time he appeared in court. He observed O'Connor talking to the prosecutor for a
few minutes and then walking over to Novoa to present him with the offer. At that time,
O'Connor had the written "plea bargain in his hands." Upon presenting Novoa with the
plea offer, O'Connor advised him that if he "didn't fucking sign the plea bargain that [he]
5
would end up going to prison, and [O'Connor] would no longer help [him]." Novoa
stated that O'Connor "used a pretty tough tone" and "looked a bit frustrated." Novoa
explained that O'Connor was frustrated with him because he did not want to accept the
offer. He did not want to "accept the sales charge." Novoa testified that O'Connor did
not explain what impact pleading guilty would have on Novoa's immigration status.
Novoa also stated that O'Connor did not discuss the possibility of pleading to a charge
other than possession with the intent to sell to make it less likely that Novoa would be
deported. Additionally, O'Connor did not talk to Novoa about any plea deals other than
the two he conveyed from the prosecutor.
Novoa accepted the plea offer on the same day it was offered. Novoa stated that
O'Connor did not give him any instructions on filling out the plea agreement. Instead,
O'Connor just told him to " '[i]nitial all the unmarked boxes.' " Novoa said that he did not
understand the plea agreement. He tried to look over it, but he "could not understand
anything of it," and as such, he did not read it. Novoa testified that he asked O'Connor
what "something meant" in the plea agreement, but O'Connor told him "not to worry
about it, just to initial all the unmarked boxes." Novoa explained that it took "under a
minute" to fill out the paperwork and that he felt "pretty rushed."
Novoa testified that if he had known of the immigration consequences of
accepting the plea offer in 2003, he would not have pled guilty. At the time he pled
guilty, Novoa had just become a father. Also, in addition to his newborn son, his family
(siblings and mother) lived in the United States.
6
Novoa was detained by immigration authorities in 2012 and remained detained for
two and a half years. Novoa never considered agreeing to deportation because his family
lives in the United States, and he knows no one in Mexico.
On cross-examination, Novoa admitted that he told O'Connor that he did not want
to go to prison. He also agreed that he did not tell O'Connor that he was a Mexican
citizen. And Novoa did not ask O'Connor about the immigration consequences of his
conviction.
O'Connor testified that he has been a criminal defense attorney since 1999. Over
his career, O'Connor has handled thousands of cases and taken 40 to 50 cases to trial.
When asked about representing Novoa, O'Connor stated that he had "very vague
recollections of the case, but [he did] not remember this case for the most part."
However, O'Connor stated that he did explain the portion of the change of plea form
discussing the immigration consequences of pleading guilty (paragraph 14). He testified
that he modified the sentence in paragraph 14, and as such, "that would have been a
direct indication that immigration was an issue and that he and [Novoa] discussed it." He
also said that it was his recollection that the particular judge who took Novoa's guilty plea
would have specifically addressed paragraph 14 because it was modified. Thus, the
judge would have drawn Novoa's attention to the modified paragraph 14.
Although O'Connor did not provide any specific detail regarding his discussions
with Novoa about immigration issues, he stated that he would not have modified
paragraph 14 with "different charges or if immigration to a particular client was not an
issue." O'Connor then clarified his "practice was to advise [about immigration
7
consequences], regardless, but [he knew] there could be situations—if it wasn't a concern,
[he would not] discuss[] it directly."
O'Connor explained his general approach to representing a client who was
pleading guilty per a plea agreement. He indicated that he would review the change of
plea form with his client to make sure he or she understood the contents of the form as
well as the consequences of a conviction. If a client asked him about anything on the
form, O'Connor said that he would "take the time to go ahead and explain or provide
additional information on whatever the question pertained to." O'Connor stated that he
would review police reports with a client and provide an honest assessment of the
strength of the client's case. O'Connor maintained that he would never pressure a client
to accept a plea agreement or rush him to complete the change of plea form quickly. He
denied telling Novoa that he needed to sign the plea agreement or he would go to prison
and O'Connor would no longer help him.
Regarding immigration issues, O'Connor was asked what he would have done, in
2003, if a client told him that he did not want to be deported. In responding to the
question, O'Connor indicated that "[t]he normal practice would have been to identify if
there was an immigration issue" as to "any client." In other words, O'Connor did not
distinguish between a client who told him that immigration was an issue and a client who
did not. He further explained what he would do after he determined "immigration was in
play":
"If there was a situation where they were not undocumented or they
were not a permanent resident, whatever it may have been, and
immigration was an issue, the first step that we would have been
8
attempting to do was obviously to balance the criminal punishment
against what criminal consequences would have been. [¶] I do not
recall what specific attempts I would have made in this case, but I
know my practice would have been to start from a dismissal, to work
my way to a non drug-related offense. [¶] And if I couldn't get it
out of a non drug-related offense, then to get it to where it would be
considered as not an aggravated felony or something that didn't
involve moral turpitude. [¶] There would have been a litany of back
and forth on what those charges or what the attorney would have
entertained, and ultimately you would be forced with 'This is what
the District Attorney is offering.' "
O'Connor stated in a case like the instant matter, if he was trying to avoid
immigration consequences, he would have tried to get the charge for possession of
methamphetamine for sale dismissed so the defendant could plead to something else.
O'Connor clarified what he would have done to avoid the immigration consequences:
"The normal procedure for me at that time [2003], and even today, is
to get it out of the drug area completely. [¶] I would have been
discussing pleading—primarily the way I do it now too—would
have been some type of a [section 32]. That would have been trying
to remove it from drugs, trying to remove it from any other
consideration on moral turpitude or becoming an aggravated felony.
[¶] The aggravated felony part would have been taken care of in
terms of what the jail time would have been. So I would imagine
[section 32] would have been discussed. [¶] If we couldn't get it out
of the drug territory and we were in drug territory, that would have
meant again—I don't mean to dismiss the negotiations from a
criminal side—so you would have been discussing misdemeanor
treatment, diversion treatment, [Proposition] 36 treatment. [¶] You
would have discussing [sic] trying to substitute the charge. No
question—you would have been trying—you would have been
dealing with a lesser included offense of simple possession. [¶]
That would have been another one of the very first things on a
criminal side that would have opened the door to having that pled to,
to a misdemeanor. [¶] We would have had a diversion or
[Proposition] 36 eligibility in that realm. I know a common practice
for us at the time was also trying to discuss it to 'nonspecific,'
meaning we would just plead to it and not reference the actual
particular controlled substance. [¶] You would also try to do
9
transportation. I think at that point in time transportation would
have included personal use and that we would have specifically done
a[] [Health and Safety Code section] 11379 with personal use in
there. That would have been attempts that we would have been
making. [¶] I know the push combining the two would have been to
have it in the [Health and Safety Code section] 11377 and have
misdemeanor treatment if we could do it."
In addition, O'Connor testified that, in 2003, the prosecutors in Fontana "were not
that interested in giving alternative dispositions that would have assisted in immigration
consequences unless the case or circumstances warranted it somehow."
O'Connor indicated that it was his practice to note in writing any plea offers and
why a defendant rejected an offer. His notes usually were kept in the case file. However,
he could not recall if he kept any such notes in Novoa's case because there were no notes
in the file, and O'Connor did not have any notes in his possession relating to the instant
matter. Despite the lack of notes in the file indicating what other offers might have been
made, O'Connor testified that he would have asked the prosecutor to dismiss the case
against Novoa. When the prosecutor did not agree, he then stated he would have asked
the prosecutor to agree to possession for personal use. Yet, when he was questioned
about the specifics of the instant matter, O'Connor reiterated that he did not remember
this case. That said, he emphasized that his normal procedure would have been to see
what lesser included offenses the prosecutor was willing to consider and then evaluate the
immigration consequences of those offenses.
Observing that O'Connor was speaking in general terms, the trial court asked him
what specifically he told the prosecutor in the instant matter regarding possible pleas.
O'Connor responded:
10
"I don't remember what I would have told the [district attorney] in
this case. I'm telling you what my normal practice would have been.
[¶] I would have been counteroffering for misdemeanors. I would
have been counteroffering, if immigration is an issue, transportation
on a[] [Health and Safety Code section] 11379 for personal use. I
would have been counteroffering for some accessory after the fact. I
would have been doing those kind of things as a general rule."
Mehr testified as an expert witness on behalf of Novoa. At the time of his
testimony, Mehr had been an attorney for about 37 years. He specializes in immigration
consequences of criminal convictions and postconviction relief. Mehr opined that, in
2003, "reasonably competent attorneys" would advise their clients of the immigration
consequences for specific convictions. In addition, the attorneys would advise their
clients regarding what pleas or strategies would be available to avoid "immigration
disaster[s]." Mehr also testified that O'Connor could have explored other possible plea
agreements to allow Novoa to avoid immigration consequences.
Wu, a student at UC Irvine School of Law, testified that she took notes during a
telephone conversation between O'Connor and members of UC Irvine's Immigrant Rights
Clinic (Clinic). Among other topics, Wu stated that O'Connor was "evasive and a little
defensive" when he was asked about immigration consequences of narcotics charges.
After hearing the testimony of the various witnesses at the hearing, entertaining
oral argument, and considering the motion, opposition, supplemental briefing, and the
admitted evidence, the superior court granted Novoa's motion. In doing so, the court
issued a lengthy written order. In that order, the court found "[t]he objective evidence"
indicated "very little interaction between . . . O'Connor and . . . Novoa." Specifically, the
court determined that O'Connor first met Novoa on January 27, 2003 when the public
11
defender declared a conflict, and O'Connor was appointed Novoa's attorney. On that day,
O'Connor presented Novoa with an offer from the prosecutor of two to three years in
prison in exchange for a guilty plea. Novoa rejected the offer. O'Connor then announced
that he was ready for the preliminary hearing, which was set to occur three days later.
The court emphasized the lack of any attempt to negotiate on behalf of Novoa:
"[O'Connor] testified that since the case was set for [preliminary hearing], it means the
negotiation went nowhere. It is only reasonable to see that the negotiation merely began,
if there was such a negotiation, on his first appearance as the attorney of record for
Novoa, when there was no evidence to indicate that Mr. O'Connor had asked and
educated himself about his client. It is reasonable to assume that Mr. O'Connor knew
little to nothing about his client as a person. Yet he announced ready for [preliminary
hearing] to be held three days later."
The court found that the third and last meeting between O'Connor and Novoa
occurred on March 13, 2003, at a pretrial proceeding. Novoa observed O'Connor talking
to the prosecutor and then presented a plea offer of 180 days in county jail and three
years' probation if Novoa pled guilty to possession of methamphetamine with intent to
sell. After Novoa agreed to accept the plea, O'Connor presented him with a change of
plea form. The court found Novoa's testimony credible that O'Connor did not review the
plea form with Novoa and did not adequately explain it, especially the portion discussing
the immigration consequences of entering the plea. Implicit in the superior court's
findings is that it believed Novoa's testimony that he only skimmed through a few
paragraphs of the change of plea form and did not understand most of the form. In
12
addition, when Novoa asked O'Connor about portions of the change of plea form,
O'Connor told him not to worry about it, initial the various boxes, and sign the form.
The court did not find O'Connor credible. It noted that O'Connor's testimony at
the evidentiary hearing was not clear regarding his practice of changing the plea form
regarding the immigration consequences of pleading guilty. The court also found that
during his interview with students from the Clinic, which occurred several months before
the evidentiary hearing, O'Connor "was unclear, and somewhat confused as to his
practice or at least did not show that he had a clear understanding of the intricacies and
nuances in immigration consequences in regard to different drug offenses."
The court pointed out that O'Connor testified that he reviewed the Continuing
Education of the Bar practice guide, Criminal Law Procedure and Practice (Criminal
Law CEB), "commonly referred to as the 'Bible' for the criminal defense practitioners in
California," and other books after his interview with the Clinic and before his evidentiary
hearing testimony. The court noted "that [O'Connor's] testimony in . . . [the] evidentiary
hearing seem[ed] to track the suggested procedure detailed in the CEB book." However,
the court found that "O'Connor still did not show he now had a full grasp of the
immigration treatments in different drug offenses and the potential remedies afforded
the" legal permanent resident versus an "undocumented person charged with deportable
crimes."
The court was concerned that O'Connor did not recall what he discussed with
Novoa about immigration consequences of a guilty plea. Nevertheless, based on the
handwritten changes to paragraph 14 of the change of plea form, O'Connor believed
13
immigration must have been a concern. The court was not persuaded by O'Connor's
testimony, noting that O'Connor did not explain: (1) the nature of the concerns, (2) the
origin of those concerns, (3) the reason for those concerns, and (4) what O'Connor did to
address those concerns. In fact, the court noted that it asked O'Connor why he did not
document such concerns and the discussions he had with Novoa if immigration was an
important issue. The court found O'Connor's answers to the question "lawyerlike,
unsatisfactory and unconvincing." Moreover, the court was vexed by the "astonishing
absence of any notes, documentation regarding the history of the case, the progress of
negotiation between [O'Connor] and the [prosecutor], [and] any discussion between
[O'Connor] and [Novoa]" in the client file O'Connor produced.
The superior court also concluded there existed a duty in 2003 on behalf of
defense counsel to advise defendants of the potential immigration consequences of
pleading guilty. In reaching this conclusion, the court relied on People v. Soriano (1987)
194 Cal. App. 3d 1470 (Soriano), People v. Barocio (1989) 216 Cal. App. 3d 99 (Barocio),
and People v. Bautista (2004) 115 Cal. App. 4th 229 (Bautista). The court also
emphasized that, in 2002, there were "multiple publications," including the Criminal Law
CEB that contained a chapter entitled, "Representing the Non-Citizen Criminal
Defendant," which discussed the issues involved in the defense of noncitizen defendants
and a defense counsel's duty in such representations. Finally, the court found persuasive
Mehr's opinion that the standard of practice for a criminal defense attorney, as of 2002,
included investigating the nature of the charges and all the consequences of a plea to
14
those charges while considering not only the direct criminal consequences but also the
immigration consequences.
The court thus found that O'Connor provided ineffective assistance of counsel.
O'Connor's representation of Novoa fell below an objective standard of reasonableness
because O'Connor failed to discuss the immigration consequences of pleading guilty. In
addition, the court found that Novoa was prejudiced by O'Connor's deficient
representation. Thus, the court ultimately concluded that Novoa did not plead guilty with
a meaningful understanding and knowing acceptance of the actual and potential adverse
immigration consequences of his plea.
The People timely appealed.
DISCUSSION
I
APPEALABILITY
As a threshold matter, Novoa contends the order granting his motion for relief
under section 1473.7 is not appealable. To address this issue, we must interpret
subdivision (f) of section 1473.7.
In construing statutes, we determine and effectuate legislative intent. (People v.
Woodhead (1987) 43 Cal. 3d 1002, 1007; People ex rel. Younger v. Superior Court of
Alameda County (1976) 16 Cal. 3d 30, 40.) To ascertain intent, we look first to the words
of the statutes. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d
1379, 1386-1387; Woodhead, at p. 1007.) "Words must be construed in context, and
15
statutes must be harmonized, both internally and with each other, to the extent possible."
(California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal. 3d 836, 844.)
Subdivision (f) of section 1473.7 provides: "An order granting or denying the
motion is appealable under subdivision (b) of Section 1237 as an order after judgment
affecting the substantial rights of a party." Here, clearly the statute contemplates an order
denying or granting a motion to be appealable. And we see no limitation in that
subdivision that would prevent the People from appealing the order granting Novoa's
motion. However, Novoa asserts that section 1473.7, subdivision (f) refers only to an
order being appealable "under subdivision (b) of section 1237" and that subdivision
applies only to a defendant. (See § 1237, subd. (b).) Although he acknowledges that
subdivision (f) of section 1473.7 refers to an order denying or granting a motion to be
appealable, Novoa insists such language supports his interpretation that only a defendant
may appeal. Thus, he points out there could be an occasion when a defendant, who
successfully moves under section 1473.7, would want to appeal an order granting the
motion because a court might have granted "a vacatur on one ground but not to others or
on one count or sentence but not others in the case." We are not persuaded.
Clearly, the Legislature wrote section 1473.7 with the intent that an order granting
or denying a motion under that section would be appealable. (See § 1473.7, subd. (f).)
Although the reference to section 1237, subdivision (b) might cause some confusion,3 we
note that the People may appeal any order made after judgment, affecting their substantial
3 That subdivision addresses appellate rights of a defendant. (See § 1237.)
16
rights. (§ 1238, subd. (a)(5).) An order allowing a defendant to withdraw his guilty plea
after his conviction affects the substantial rights of the People. As such, the subject order
in the instant action is appealable.
II
SECTION 1473.7
A. The People's Contentions
The People challenge the superior court's order granting Novoa's motion under
section 1473.7 for two primary reasons. First, they argue the court erred in holding
O'Connor to a standard for criminal defense that did not exist in 2003. Second, they
argue the court erred in finding O'Connor provided ineffective assistance of counsel. In
the alternative, the People maintain they have been prejudiced by Novoa's delay in
bringing his motion, and as such, laches should apply.
B. Standard of Review
Novoa correctly notes that, in general, the standard of review for an order on a
motion to withdraw a guilty plea is abuse of discretion. (See People v. Fairbank (1997)
16 Cal. 4th 1223, 1254.) However, Novoa's motion was based on his claim of ineffective
assistance of counsel, which implicates a constitutional right. Therefore, in a case like
this that presents a mixed question of fact and law, we must independently review the
order. (See People v. Olvera (2018) 24 Cal.App.5th 1112, 1116 (Olvera).) We defer to
the trial court's factual findings if supported by substantial evidence and exercise our
17
independent judgment to decide whether the facts demonstrate deficient performance and
resulting prejudice.4 (Ibid.)
C. The Scope of Criminal Defense Counsel's Duties Regarding Immigration Issues in
2003 in This Matter
The parties disagree whether professional norms in 2003 imposed on criminal
defense counsel an affirmative duty to investigate and advise on immigration issues.
Below, the superior court found such a duty, ultimately concluding that O'Connor had a
duty to provide Novoa "with the appropriate understanding of the immigration
consequences [Novoa] would face if he took the offer to plead guilty to [possession of
methamphetamine for sale]." The trial court reached this conclusion based on Soriano,
supra, 194 Cal. App. 3d 1470, Barocio, supra, 216 Cal. App. 3d 99, and Bautista, supra,
115 Cal. App. 4th 229, as well as the testimony of Mehr and practice guides and American
Bar Association (ABA) standards discussing the standard of practice of handling criminal
cases involving immigration consequences.
The People argue the court's conclusion was incorrect. They contend, in 2003, a
criminal defense attorney in California had no affirmative duty to give any immigration
advice at all, only a duty to avoid giving incorrect advice as set forth in In re Resendiz
4 We are aware that at least one appellate court has concluded that we can make
independent findings of fact in reviewing an order granting or denying a section 1473.7
motion. (See People v. Ogunmowo (2018) 23 Cal.App.5th 67, 79.) The court in
Ogunmowo was addressing the circumstance where the trial court makes factual findings
based on declarations, noting the trial court and the appellate court "are in the same
position in interpreting written declarations." (Ibid.) Here, the trial court heard live
testimony. As such, the trial court was in a much better position to consider the evidence
in the first instance and make credibility determinations. We will not reweigh evidence
here, but will defer to the trial court's factual findings if supported by substantial evidence
instead.
18
(2001) 25 Cal. 4th 230 (Resendiz). In support of their position, the People maintain that
Soriano, Barocio, and Bautista do not establish any affirmative duty for a criminal
defense attorney to provide his or her client with immigration advice. Further, the People
argue this duty only changed when the United States Supreme Court issued its opinion in
Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla) seven years after Novoa pled guilty.
In Padilla, the court determined that a criminal defense counsel's Sixth
Amendment obligations include properly advising his or her client of the immigration
consequences of a guilty or no contest plea. The court recognized that federal
immigration law is often complex; thus, at times, deportation as a consequence of a
conviction is neither clear nor certain. In those cases, the court concluded, the most the
Sixth Amendment may require of defense counsel concerning immigration consequences
is a warning that a criminal conviction may have adverse immigration consequences.
(Padilla, supra, 559 U.S. at p. 369.) However, when, as was the case in Padilla, federal
immigration law specifies in "succinct, clear, and explicit" terms that a conviction will
result in deportation, the Sixth Amendment requires the criminal defense attorney to
accurately advise his or her client of that consequence before the client enters a guilty
plea. (Padilla, at pp. 368-369.)
Before Padilla, federal and state courts had been divided on a counsel's Sixth
Amendment obligation to advise on the immigration consequences of a conviction. But
most courts had concluded no such duty existed at all. (See Chaidez v. United States
(2013) 568 U.S. 342, 353 (Chaidez).) The few courts that had recognized ineffective
assistance of counsel claims involving immigration advice limited their holdings to
19
affirmative misstatements by counsel, declining to reach the issue whether a mere failure
to warn of immigration consequences also could result in finding ineffective assistance.
(See Padilla, supra, 559 U.S. at p. 369; Resendiz, supra, 25 Cal.4th at p. 240.) Yet, the
United States Supreme Court made clear that to provide effective assistance of counsel,
"counsel must inform her client whether his plea carries a risk of deportation." (Padilla,
at p. 374.)
Three years after Padilla, the United States Supreme Court explained that Padilla,
supra, 559 U.S. 356 created new law. In Chaidez, supra, 568 U.S. 342, the court
determined that Padilla had had the effect of suddenly changing the nature of
immigration issues from being "collateral consequences" of pleas to something unique,
roughly akin to direct consequences. (Id. at p. 349.) The court concluded that Padilla
had created a new affirmative obligation on trial counsel to understand and accurately
explain the immigration consequences of a plea to a defendant before the entry of that
plea where no such duty had existed before. This rule was not based on prevailing
professional standards but, rather, on a determination that immigration consequences
were potentially so profound that trial counsel had an obligation to accurately advise their
clients about them. (See id. at p. 353.) Therefore, the court in Chaidez held that, under
the rules set out in Teague v. Lane (1989) 489 U.S. 288, the Padilla opinion could not be
applied retroactively to cases that were final at the time the opinion in Padilla was issued.
(Chaidez, at pp. 344, 358.)
Here, the parties agree Padilla is not retroactive. Accordingly, Novoa's ineffective
assistance of counsel claim is governed by the Sixth Amendment obligations as they
20
existed at the time of Novoa's plea in 2003. (See Olvera, supra, 24 Cal.App.5th at p.
1115.) Not surprisingly, the parties disagree about what the Sixth Amendment mandated
in this case.
Even well before Padilla, California courts had rejected the collateral
consequences doctrine as a bar to ineffective assistance of counsel claims for immigration
related advice. (See Resendiz, supra, 25 Cal.4th at p. 240 [opting not to announce a
categorical bar to immigration based ineffective assistance of counsel claims, the court
determined that "affirmative misadvice regarding immigration consequences can in
certain circumstances constitute ineffective assistance of counsel"].)
In Resendiz, the defendant, a legal permanent resident of the United States, asked
his counsel whether his plea to a drug trafficking charge, an aggravated felony, would
affect his legal residency. According to the defendant's petition for writ of habeas
corpus, his counsel had assured him at the time he entered his plea he would have " 'no
problems with immigration' " except that he would not be able to become a United States
citizen. In a declaration submitted by the Attorney General in response to the defendant's
petition for writ of habeas corpus, the defendant's trial counsel stated he did not
remember what he had actually told the defendant but that it was his custom and practice
to explain to noncitizen clients " 'that a guilty plea is likely to [a]ffect . . . the client's
ability to become a citizen. I also tell these clients that I make the assumption that the
federal government is always wanting to deport non-citizen felons. I explain to them
they should assume the government has a policy to deport people in their position.' "
(Resendiz, supra, 25 Cal.4th at p. 238.)
21
Based on the record before it, the court noted that it was "not able to determine
with certainty whether counsel conformed to his purported custom and habit or . . . he
supplemented any customary warning with a more specific, but incorrect, advisement."
(Resendiz, supra, 25 Cal.4th at pp. 252-253.) However, the court determined that it did
not have to resolve that conflict because the defendant had not shown he was prejudiced
(i.e., he would have rejected the plea offer had he been properly warned). (Id. at pp. 253-
254.)
The court expressly declined to reach "whether a mere failure to advise could also
constitute ineffective assistance." (Resendiz, supra, 25 Cal.4th at p. 240.) Because the
issue was not squarely before it, the court also declined to address defense counsel's
obligation to research immigration consequences, though it expressly doubted the Sixth
Amendment imposed "a blanket obligation on defense counsel, when advising pleading
defendants, to investigate immigration consequences or research immigration law."
(Resendiz, at pp. 249-250.)
In the instant matter, the People argue Resendiz established that, before Padilla,
immigration consequences were collateral in nature. (See Resendiz, supra, 25 Cal.4th at
p. 242.) Thus, the People assert that in "2001 there was not widespread agreement that
criminal defense counsel had an affirmative duty to advise defendants about immigration
consequences."
Novoa counters that the People's reliance on Resendiz, supra, 25 Cal. 4th 230 is
misplaced. He notes that Resendiz predates Novoa's plea by two years; therefore, it could
not establish the prevailing professional norms for defense counsel at the time he pled
22
guilty. We agree with Novoa that the holding of Resendiz does not resolve the issue
before us. That said, the People are correct that Resendiz did not establish any duty on all
criminal defense attorneys practicing in California to advise their clients about
immigration consequences in 2003. Indeed, it does not and could not stand for that
proposition because that was not the issue before it. (See Powers v. City of Richmond
(1995) 10 Cal. 4th 85, 147 ["Judicial decisions are of course authority for what they
actually decide; we do not readjust their holdings to incorporate claims not asserted or
considered therein."].) By the same token, the People overstate the impact of Resendiz by
arguing it prohibited the trial court in the instant matter from finding O'Connor had a duty
to provide Novoa with the appropriate understanding of the immigration consequences of
his guilty plea. The court in Resendiz specifically declined to reach whether a failure to
advise regarding immigration issues could constitute ineffective assistance of counsel.
(Resendiz, at p. 240.) And, although it noted that immigration consequences are
considered collateral, it concluded that the " 'collateral' nature of immigration
consequences does not foreclose [an] ineffective assistance of counsel claim." (Id.
at p. 243.)
Although Resendiz does not provide us with the necessary guidance in this matter,
Novoa asserts Soriano, supra, 194 Cal. App. 3d 1470, Barocio, supra, 216 Cal. App. 3d 99,
and Bautista, supra, 115 Cal. App. 4th 229 do. We do not share Novoa's expansive
reading of these cases.
In Soriano, the defendant claimed that he asked his attorney if he would be
deported if he pled guilty. The attorney responded in the negative. Subsequently, the
23
defendant asked his attorney whether a guilty plea would prohibit him from obtaining
citizenship. The attorney responded that it would not and reiterated that he would not be
deported. (Soriano, supra, 194 Cal.App.3d at p. 1478.) The defendant's attorney
asserted that she told her client that he " 'could' " be deported if he pled guilty. (Id.
at p. 1479.) The court concluded the attorney's advice was erroneous and counsel had
undertaken no effort to obtain accurate information, despite being asked about the
immigration consequences of a guilty plea. (Id. at p. 1482.) The court determined that
this erroneous advice constituted ineffective assistance of counsel because, when asked,
trial counsel had an obligation to research further and provide accurate information.
(Ibid.) However, Soriano did not establish that defense counsel had a duty to research
and advise the defendant of his immigration consequences as a general matter. Instead, it
stands for the proposition that when asked by a client about the immigration
consequences of a plea, the attorney has an obligation to obtain correct information and
advise the client based on that information. Here, there is no indication in the record that
Novoa asked his counsel repeatedly, let alone once, about the immigration consequences
of a guilty plea. In this sense, Soriano is not instructive here.
Barocio, supra, 216 Cal. App. 3d 99, similarly did not create an independent pre-
Padilla duty to advise defendants of immigration consequences of their pleas. In that
case, the defendant's trial attorney failed to seek a judicial recommendation against
deportation. (Barocio, at p. 103.) There was no issue about counsel's advice to the
defendant. Indeed, the court in Barocio specifically concluded that while section 1016.5
imposed a duty on the court to warn of the possible immigration consequences of a plea,
24
counsel had no corresponding duty because immigration concerns were "collateral
consequence[s]" of the plea. (Barocio, at pp. 107-108.) The only deficiency found in
Barocio was trial counsel's failure to advise the defendant of the right to a
recommendation against deportation, a special mechanism that existed under federal law
at that time. (Id. at pp. 109-110.) The case was remanded to the trial court for
resentencing to allow counsel to confer with his client regarding requesting a judicial
recommendation against deportation and carry out the client's wishes. (Id. at p. 111.)
Novoa makes no similar complaint here.
Finally, although more like the instant matter than Soriano and Barocio, Bautista,
supra, 115 Cal. App. 4th 229, ultimately, is not helpful here. The evidence in Bautista
showed that the defense attorney's strategy was simply to bargain for "the most lenient
sentence possible." (Id. at p. 238.) However, an immigration attorney provided a
declaration as an expert witness that in at least five cases in which he was personally
involved, the prosecutor agreed to allow a defendant charged with drug sales to " 'plead
upward,' " defined as pursuing a negotiated plea for a violation of a greater offense that
would carry a longer prison sentence but not result in deportation. (Ibid.) The defense
attorney never contemplated such a strategy. (Ibid.) And the expert witnesses opined
that the defense attorney's representation of the defendant fell below objective standards
of reasonableness. (Id. at pp. 239-240.) The appellate court issued an order to show
cause to the trial court for a reference hearing to take evidence and resolve factual issues
relating to defense counsel's legal advice at the time of the defendant's guilty plea. (Id.
at p. 242.)
25
Ostensibly, the instant matter and Bautista appear similar. In fact, the same expert
witness who testified in Bautista (Mehr) also testified in the evidentiary hearing below.
However, a critical difference between Mehr's testimony in Bautista and the instant
matter involves his testimony about the availability to plead up to a greater offense to
avoid negative immigration consequences. In Bautista, Mehr testified about five
occasions in which he was involved where the district attorney allowed a defendant to
plead guilty to a greater offense to avoid deportation. (Bautista, supra, 115 Cal.App.4th
at p. 240.) Further, the court's analysis in that case focused on the premise that there was
a reasonable probability the prosecutor and trial court would have been amenable to
allowing the defendant to plead up to a nonaggravated felony and avoid deportation. (Id.
at pp. 240-242.) Here, there was no such evidence before the trial court. Mehr did
discuss greater offenses to which Novoa could have pled guilty, but he provided no
evidence that the prosecutor would have accepted those pleas to allow Novoa to avoid
deportation. Indeed, Mehr admitted that he had never handled a case in San Bernardino
County and was not familiar with the courthouse in Fontana. Moreover, there is no
suggestion in Bautista that trial counsel had a pre-Padilla duty to research and explain
immigration consequences to their clients. Finally, as the opinion in Bautista was issued
after Novoa entered his guilty plea, O'Connor could not have referred to that case for
guidance on his obligation to discuss the immigration consequences of the guilty plea
with Novoa.
In summary, we are not persuaded that Soriano, supra, 194 Cal. App. 3d 1470,
Barocio, supra, 216 Cal. App. 3d 99, and Bautista, supra, 115 Cal. App. 4th 229 create a
26
general duty for a criminal defense attorney, in 2003, to discuss the immigration
consequences of a guilty plea. That said, those three cases are consistent with our high
court's refusal to announce a categorical bar to immigration based ineffective assistance
of counsel claims. (See Resendiz, supra, 25 Cal.4th at p. 240.) In other words, Soriano,
Barocio, and Bautista present specific circumstances wherein a defendant may
successfully bring an immigration based ineffective assistance of counsel claim pre-
Padilla.
In addition to California case law, the trial court found that O'Connor had a duty to
advise Novoa on immigration consequences of his guilty plea based on ABA standards,
various practice guides from 2002 (especially the Criminal Law CEB), and Mehr's
testimony. The People do not challenge the trial court's reliance on the ABA standards or
the practice guides, but they do argue the court erred in relying on Mehr's testimony.
Specifically, the People argue that Mehr's testimony was improper because he could not
testify about a defense counsel's duty to a client, appropriate negotiation strategies of a
defense attorney or that O'Connor had rendered deficient representation of Novoa.
Citing Summers v. A. L. Gilbert Co. (1999) 69 Cal. App. 4th 1155, the People claim
Mehr could not testify about a defense counsel's duty to a client because such a duty is a
question of law. Their reliance on Summers is misplaced. That case did not involve an
expert witness testifying about a defense counsel's duty to a client. Instead, the expert
testified about "issues of law . . . almost too numerous to list." (Id. at p. 1185.) These
included opinions that a defendant was hauling corn illegally, a certain contract was
illegal, and a defendant was liable based on the actions of another defendant. (Ibid.)
27
Here, the People do not point to any portion of Mehr's testimony that is like the expert's
testimony in Summers. To the contrary, "California law holds that expert testimony is
admissible to establish the standard of care applicable to a lawyer in the performance of
an engagement and whether he has performed to the standard[.]" (Wright v. Williams
(1975) 47 Cal. App. 3d 802, 810; see Strickland v. Washington (1984) 466 U.S. 668, 688
(Strickland) ["The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms."].) There was nothing improper
about Mehr testifying regarding the practice among reasonably competent defense
attorneys in 2003 based on his experience, observations, training, knowledge, education,
and skills. (See Evid. Code, § 720.)
Likewise, we are not troubled by Mehr's testimony about possible negotiation
strategies that O'Connor could have used in representing Novoa. Mehr opined that a
criminal defense attorney had a duty to advise his or her client regarding what pleas or
strategies would be available to avoid "immigration disaster[s]." Mehr then testified
about possible plea agreements that would have allowed Novoa to avoid immigration
consequences. Such testimony was not an application of Mehr's opinion of the law to the
facts of the case. He merely offered possible plea agreements that O'Connor could have
pursued. He did not opine that O'Connor would have been successful in negotiating
those pleas. Nor did he opine that the prosecution would have been receptive to any such
offers. Moreover, the People were able to cross-examine Mehr regarding the
hypothetical pleas as well.
28
Finally, the record does not support the People's claim that Mehr testified that
O'Connor rendered deficient representation of Novoa in this case. The prosecutor
objected to a question asking Mehr to opine whether O'Connor provided ineffective
assistance of counsel. The court asked Novoa's counsel to rephrase the question, noting
that it was for the court to decide whether O'Connor's representation of Novoa fell below
the "norm of practice." Ultimately, Novoa's counsel rephrased the question, per the
court's guidance, to ask Mehr what he observed about O'Connor's representation of
Novoa. The prosecutor did not object to that question. Simply put, Mehr did not testify
that O'Connor rendered deficient performance as claimed by the People here. Thus, the
trial court did not err in relying on Mehr's testimony.
To summarize, we agree with the People that Soriano, supra, 194 Cal. App. 3d
1470, Barocio, supra, 216 Cal. App. 3d 99, and Bautista, supra, 115 Cal. App. 4th 229 are
not instructive here. Yet, we disagree with the People that the trial court erred in relying
on Mehr's testimony. Further, we see no problem with the trial court also considering
practice guides and the ABA guidelines to determine the prevailing professional norms in
2003. (See Padilla, supra, 559 U.S. at p. 366, citing Strickland, supra, 466 U.S. at p. 688
["We long have recognized that '[p]revailing norms of practice as reflected in American
Bar Association standards and the like . . . are guides to determining what is
reasonable . . . .' "].) Yet, we are left with the question of whether Mehr's testimony
along with practice guides and the ABA standards are sufficient for the trial court to find
O'Connor had a duty in 2003 to discuss immigration consequences with Novoa.
29
Although the People do not take issue with practice guides and the ABA standards
in general, they argue those materials cannot trump case law. Specifically, they argue
that Resendiz, supra, 25 Cal. 4th 230 prohibited the trial court from finding any duty to
discuss immigration consequences here. (See id. at pp. 249-250 ["We are not persuaded
that the Sixth Amendment imposes a blanket obligation on defense counsel, when
advising pleading defendants, to investigate immigration consequences or research
immigration law."].) We do not disagree that, in 2001, pre-Padilla, the Sixth
Amendment did not require criminal defense counsel to investigate immigration
consequences or research immigration law when advising pleading defendants. Yet, our
agreement on this point does not end our analysis of the trial court's determination here.
The Sixth Amendment does not specify the specific requirements of effective
assistance of counsel. (See Strickland, supra, 466 U.S. at p. 688.) Instead, "[t]he proper
measure of attorney performance remains simply reasonableness under prevailing
professional norms." (Ibid.) Below, Mehr testified about the prevailing professional
norms for criminal defense attorneys in representing noncitizen defendants in 2003.
Mehr has been a practicing attorney since 1976 with about 37 years of criminal
law and immigration experience. He has written "the leading treatise on immigration and
criminal law" entitled Defending Immigrants in the Ninth Circuit, and he was the update
editor and coauthor of "chapter 52" in the Criminal Law CEB entitled Defending
30
Noncitizen Defendants.5 Mehr also has frequently given lectures and presentations to the
criminal defense bar, mainly in Santa Cruz, California, but also in Southern California
and San Francisco. Specifically, Mehr has lectured the criminal defense bar on
immigration consequences of criminal convictions since "around 1987." He was the
expert in Bautista, supra, 115 Cal. App. 4th 229 and served as an expert witness on a
criminal defense attorney's duty regarding immigration issues in Santa Cruz County.
Additionally, Mehr has "submitted expert witness declarations for cases throughout the
state of California." However, Mehr admitted that he had never handled any case in San
Bernardino County and was not familiar with the Fontana courthouse. That said, in
forming his opinions in this case, Mehr stated that he talked to two criminal defense
attorneys who had practiced criminal defense law in San Bernardino County in 2003.6
Mehr opined that, in 2003, a "reasonably competent attorney . . . would advise [his
or her client] of what the immigration consequences would be for a specific conviction.
[He or she] would also advise [the client] about what pleas or strategies would be
available to avoid that immigration—an immigration disaster." Mehr based his opinions
on his interactions with criminal defense counsel, ABA standards, case law, statutory
changes, and practice guides.
5 Mehr testified that in the edition of the Criminal Law CEB in effect at the time
Novoa pled guilty, the relevant chapter was 48.
6 During cross-examination of Mehr, he admitted that the two attorneys he
consulted regarding the practice in San Bernardino County were based in Los Angeles,
but claimed the attorneys told him that the standards in Los Angeles and San Bernardino
were the same. Nevertheless, Mehr conceded that he did not know how much either
attorney practiced in San Bernardino County.
31
The trial court found Mehr persuasive, noting his "impressive resume" and
"experiences through his work and interaction with criminal bars." The court also quoted
from section 48 of the Criminal Law CEB as it existed in 2002:
"[A] defense attorney's goal is always to seek a result that avoids
creating a ground of inadmissibility or deportability or an outcome
that could result in a bar to potential future immigration relief. The
first step in analyzing a case is to find out the defendant's current or
potential immigration status, this information is necessary to identify
the specific immigration effects of a disposition. Counsel must
investigate the client's immigration status, research the immigration
law, and inform the client very specifically about potential
consequences. In addition, counsel must actively attempt to avoid
unfavorable consequences if possible. Anything less constitutes
ineffective assistance of counsel." (Cal. Criminal Law: Procedure
and Practice (Cont.Ed.Bar 2002), § 48.1, p. 1356.)
Although the parties here disagree whether the trial court properly relied on Mehr's
opinion or if Mehr's testimony could establish the professional norms that existed in San
Bernardino County in 2003, we are struck by the one person who appears to agree with
Mehr's opinions: O'Connor, Novoa's counsel when he pled guilty in 2003.
O'Connor predominately practiced in the Fontana courthouse in 2003. He was on
the conflict panel at that time. When asked by the People how he would have handled a
situation in 2003 wherein a client told him he or she did not want to be deported,
O'Connor responded that his "normal practice would have been to identify if there was an
immigration issue[,]" and he would have "started with any client" "to determine if
immigration was in play." Thus, O'Connor went beyond the call of the People's question
and stated his beginning point, with any client in 2003, was to determine if immigration
issues existed. Indeed, in discussing the modifications to paragraph 14 of the change of
32
plea form, O'Connor stated "normally the practice was to advise, regardless, but I know
there could be situations—if it wasn't a concern, we weren't discussing it directly."
Again, the concern O'Connor is emphasizing is immigration. He is confirming his typical
practice was to discuss immigration issues, if they existed.
Moreover, O'Connor testified that his practice in 2003 included "balance[ing] the
criminal punishment against what criminal consequences would have been." He also
testified extensively about what attempts he would make in negotiating a plea when
immigration was at issue. However, he stated that the prosecutors he dealt with in
Fontana in 2003 "were not that interested in giving alternative dispositions that would
have assisted in immigration consequences unless the case or circumstances warranted it
somehow."
O'Connor testified that when he first started practicing law in 1999, he was
working in an office with about seven other defense attorneys as well as working in the
courthouse with at least four other attorneys. He characterized the attorneys in his office
as "senior criminal defense attorneys." He said he learned how to handle criminal cases
from these attorneys, who "on a regular basis" gave him "guidance and assistance[.]" He
also stated that he was introduced to the Criminal Law CEB at that time, which he
referred to as his "bible."
Against this backdrop, it is clear we are faced with a unique case. The People
correctly maintain that there existed no published California case, at the time Novoa pled
guilty, wherein a court held a criminal defense attorney had a duty to discuss the
immigration consequences arising out of a plea deal. But the record contains expert
33
testimony that a reasonable criminal defense attorney, in 2003, would have advised a
noncitizen criminal defendant about the immigration consequences of his or her guilty
plea. And, O'Connor, the very criminal defense counsel whose actions are at issue here,
testified that his practice, in 2003, was to identify if immigration was an issue for "any
client[,]" and if it was, balance the criminal punishment with the criminal consequences,
and attempt to negotiate a plea deal that would avoid immigration consequences.
Further, O'Connor stated he learned how to handle criminal cases and his strategy from
"senior criminal defense attorneys" and the Criminal Law CEB. Although O'Connor
does not recall any specific details regarding the instant matter, he did modify
paragraph 14 of the change of plea form; thus, he believes immigration was an issue in
Novoa's case and must have been discussed. Yet, the trial court found that O'Connor did
not adequately review the change of plea form with Novoa, and that finding is supported
by substantial evidence.
Although Mehr's testimony coupled with O'Connor's testimony may point toward
the potential of a more robust obligation on behalf of criminal defense attorneys that
might have existed in 2003, on the record before us, we need not make such a sweeping
proclamation. Nor can we.7 Based on the specific facts of the case, it is apparent that, in
7 We emphasize that we do not base our conclusion on Padilla, supra, 559 U.S. 356
because that case was decided seven years after Novoa pled guilty in this matter. (See
Chaidez, supra, 568 U.S. at pp. 344, 358 [concluding Padilla did not apply
retroactively].) Instead, we rely on the evidence in the record of the prevailing
professional standards in San Bernardino County, and more specifically, the Fontana
courthouse within that county in 2003. That said, we discourage any broad reading of
this opinion and caution against an application of the instant matter to a case that does not
34
the Fontana courthouse in San Bernardino County, criminal defense attorneys, in 2003,
had the practice of advising noncitizen defendants consistent with paragraph 14 of the
change of plea form.
D. Ineffective Assistance of Counsel
To show that trial counsel's performance was constitutionally defective, an
appellant must prove: (1) counsel's performance fell below the standard of
reasonableness under prevailing professional norms, and (2) the "deficient performance
prejudiced the defense." (Strickland, supra, 466 U.S. at pp. 687-688.)
Below, the trial court found that O'Connor's performance fell below the standard
of reasonableness under the prevailing professional norms, namely that O'Connor did not
adequately explain to Novoa the immigration consequences of pleading guilty. The
People disagree. They argue that to the extent O'Connor had a duty to inform Novoa he
would be deported, he did so as evidenced by the modification of paragraph 14 and
O'Connor's testimony that he must have talked to Novoa about immigration issues.
However, the People's argument overlooks the factual findings of the trial court.
The court found Novoa credible. Specifically, it believed Novoa when he testified
that O'Connor did not adequately review or explain the change of plea form. Further, the
court noted that Novoa did not recall any discussions with O'Connor about the
share the same facts. We are not holding that a criminal defense attorney, in 2003, had a
duty to investigate and discuss all immigration consequences related to the offenses
charged against a defendant. We do not conclude that, in 2003, a criminal defense
attorney had the duty to attempt to negotiate a plea bargain that would reduce the
immigration consequences of a plea. It might be that such duties existed then, but that
determination cannot be reached on the record before us.
35
immigration consequences of pleading guilty. The court also did not find the modified
paragraph 14 or Novoa's initials by paragraph 14 established that O'Connor informed
Novoa regarding the immigration consequences of pleading guilty. The court explained:
"Sometimes, a defendant who signed and initialed the boxes on the
plea form, but having no clue what he or she was doing in terms of
his rights and what all the consequences of his or her plea were [sic].
In those situation[s], it was either because counsel was too busy, and
failed to treat the defendant as a person and not a statistic or the
defendant only focused on the number of days, months or years in
jail or prison and nothing else came to his or her mind."
Additionally, the court observed that there was "very little interaction" between
O'Connor and Novoa. And the court appeared bothered that O'Connor claimed that
"immigration must of been a concern" in representing Novoa, but there was no
documentation in the file that O'Connor discussed any such concerns with Novoa or
attempted to address such concerns in negotiating a plea agreement. Simply put, the trial
court did not believe that O'Connor discussed the immigration consequences of pleading
guilty with Novoa.
The People claim that the trial court improperly shifted the burden of proof to
them by focusing on the absence of evidence that O'Connor explained the "full
immigration consequences" to Novoa. We disagree.
The People correctly point out that Novoa bears the burden of proof in support of
his motion under section 1473.7. We agree with the trial court that Novoa satisfied this
burden. He testified that he did not recall discussing any immigration consequences with
O'Connor. He stated that he did not have time to read the change of plea form, and
O'Connor did not take the time to discuss the form with him. The trial court found
36
Novoa credible. Additionally, the court noted that O'Connor and Novoa did not spend
much time together, and there was no evidence that O'Connor attempted to negotiate any
plea agreement with the prosecutor beyond simply relaying the prosecutor's two offers to
Novoa. The trial court's comment about the "absence of evidence" appears to address the
People's attempt to rebut Novoa's testimony and the other evidence proffered at the
hearing in support of Novoa. For example, the court did not find O'Connor credible.
O'Connor testified at length about how he handled immigration issues in 2003, but the
court did not find any evidence that O'Connor took the steps that he claimed he would
have taken. Thus, the court's comment about an absence of evidence explained how it
viewed and weighed the evidence. It was not an indication that the court shifted the
burden to the prosecution.
Likewise, we are not troubled by the court's reference to "full immigration
consequences." The People claim the court does not explain this reference, arguing the
court "did not expressly find that Mr. O'Connor failed to inform [Novoa] of the one
critical immigration consequence: deportation. The plea form makes it clear that
[Novoa] was in fact advised." This argument glosses over our standard of review. We
defer to the court's factual findings if supported by substantial evidence. (Olvera, supra,
24 Cal.App.5th at p. 1116.) In conducting a substantial evidence review, we presume
every inference in support of the order that the finder of fact could reasonably have made.
We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the
order merely because the evidence could be reconciled with a contrary finding.
(People v. D'Arcy (2010) 48 Cal. 4th 257, 293.)
37
Below, the trial court found that Novoa did not plead guilty with a meaningful
understanding and a knowing acceptance of the actual and potential adverse immigration
consequences of his plea. It concluded that O'Connor did not effectively represent Novoa
because he did not provide "his client with the appropriate understanding of the
immigration consequences his client would face if he took the offer to plead guilty." The
primary consequence of Novoa pleading guilty to possession of methamphetamine with
the intent to sell was deportation. Thus, we must imply that the court found that
O'Connor did not advise Novoa that he would be deported. Alternatively stated, the court
did not find the change of plea form proved that O'Connor advised Novoa that he would
be deported if he pled guilty.
Several aspects of the court's order support this finding. The court found "very
little interaction between" O'Connor and Novoa. Novoa testified that O'Connor never
explained the "immigration consequences that would befall upon him after his acceptance
of the offer to plead guilty." The court observed that sometimes a defendant may sign
and/or initial a change of plea form but has "no clue what he or she was doing in terms of
his rights and what all the consequences of his or her plea were." Novoa testified that he
did not read the change of plea form; he merely skimmed it. Also, Novoa stated that
O'Connor did not explain the form and told Novoa just to sign. it. And the court found
Novoa credible. The court did not find O'Connor believable, noting that O'Connor did
not offer a credible explanation why there was no indication in the file that he ever
discussed immigration consequences with Novoa. The People ignore this evidence and
these findings, and essentially ask us to just consider the change of plea form. In this
38
sense, the People are asking us to reweigh the evidence. This we will not do. (People v.
D'Arcy, supra, 48 Cal.4th at p. 293.)
The trial court's findings below chiefly relied on live testimony from O'Connor
and Novoa. Because the trial court heard this evidence, it is in a much better position
than this court to make credibility determinations. It is not the province of this court to
second guess those determinations. (See People v. Ferraez (2003) 112 Cal. App. 4th 925,
931.) The trial court concluded O'Connor did not properly discuss with Novoa the
immigration consequences of pleading guilty, the most devastating of which was Novoa's
deportation. Here, substantial evidence supports the trial court's finding that O'Connor's
representation of Novoa fell below the standard of reasonableness under prevailing
professional norms of criminal defense attorneys practicing in the subject Fontana
courthouse.
Nonetheless, the People assert that even if O'Connor's representation of Novoa fell
below the standard of reasonableness, Novoa's motion should have failed because he
cannot show prejudice. In other words, Novoa did not prove it was reasonably probable
he would have rejected the plea and "insisted, instead, on proceeding to trial" but for
O'Connor's incompetence. (Resendiz, supra, 25 Cal.4th at p. 253; see People v. Martinez
(2013) 57 Cal. 4th 555, 559 (Martinez).) We disagree.
Courts determine prejudice on a case-by-case basis in light of all of the
circumstances. (Lee v. United States (2017) __U.S. ___ [137 S. Ct. 1958, 1966] (Lee).)
In making this determination in the context of a guilty plea involving immigration
consequences, courts must consider the likelihood of success at trial, the potential
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consequences after a trial compared to the consequences flowing from the guilty plea,
and the importance of immigration consequences to the defendant. (See Lee, at pp. 1966-
1967; Martinez, supra, 57 Cal.4th at pp. 564, 568.) Nonetheless, " '[s]urmounting
Strickland's high bar is never an easy task,' [citation], and the strong societal interest in
finality has 'special force with respect to convictions based on guilty pleas.' [Citation.]
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, at p. 1967.) "[T]he defendant bears the burden of establishing
prejudice" and "must provide a declaration or testimony stating that he or she would not
have entered into the plea bargain if properly advised. 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, at p. 565.)
Below, the trial court found credible Novoa's testimony that he would not have
accepted the plea offer if he understood the immigration consequences that awaited him
after the plea. The court observed that Novoa came to the United States when he was
only five or six years old and had never returned to Mexico. Shortly before he pled guilty
in 2003, his son was born in the United States. In addition to his son, his mother, foster
mother, brothers, sisters, aunts, uncles, and cousins all lived in the United States.
Although Novoa was born in Mexico, he had no connection whatsoever to that country.
The court explained:
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"Unfortunately, in . . . Novoa's case, the picture that awaited him
after the plea was . . . complete darkness and devastation compared
to the maximum possible prison time he could face if he decided to
go to trial and [was] found guilty on all charges. If we look at the
disastrous immigration consequences that awaited him, we can see
that any person in Nov[o]a's situation who had a meaningful
understanding of such consequences would reasonabl[y] look at the
180 days in jail and three year probation as completely meaningless.
The acceptance of said offer did not match with Novoa's wish that
was alluded [to] in his own testimony and Mr. O'Connor's testimony,
i.e., his wanting to go home with his family. Of course, it seems
reasonable any prisoner would always want to get out of jail and be
back to his family, if he had one. That is normal and
understandable. But Novoa's desire[,] as suggested by Mr.
O'Connor's testimony, coupled with the complete absence of any
documentation or note in the client's file to show whether any
explanation had been given to Novoa before he took the plea, gives
strength and credibility to Novoa's claim that Mr. O'Connor had
failed to explain to him in a meaningful way the immigration
consequences awaiting him and that had Mr. O'Connor explained to
him the disastrous immigration consequences that certainly and
absolutely awaited him after the plea[,] he would not have accepted
the offer to plead guilty."
Ignoring this portion of the trial court's order, the People insist there was "little
contemporaneous evidence" that deportation was important to Novoa at the time he pled
guilty in 2003. In making this assertion, they do not address the undisputed evidence of
Novoa's connections to the United States and his lack of any link to Mexico (except for
his birth). They do not discuss the fact that Novoa's son was born in the United States
before he pled guilty. Instead, they conflate their prejudice argument with their previous
contention that O'Connor's representation of Novoa did not fall below the applicable
standard of reasonableness. To this end, the People argue Novoa has not shown prejudice
because O'Connor modified paragraph 14, proving that he did, in fact, discuss with
Novoa the immigration consequences of pleading guilty. As we highlight above, the
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court made no such factual finding. To the contrary, the court did not find O'Connor
credible in his claim that he had any immigration related discussions with Novoa.
Further, the trial court believed Novoa that he did not read or understand the change of
plea form. And the court found Novoa's testimony credible that O'Connor did not discuss
the immigration consequences of pleading guilty. As such, we are not persuaded that the
modified paragraph 14 undermines Novoa's claim of prejudice on the record before us.
The People also claim the trial court erred when it prohibited them from cross-
examining Novoa about the facts of his offense.8 They argue the underlying facts would
show that Novoa did not have a plausible chance of an acquittal if he proceeded to trial
(in lieu of pleading guilty). Under Lee, supra, 137 S.Ct 1958, the People contend
Novoa's chances at trial are relevant in determining the existence of prejudice.
Alternatively stated, the People maintain that Novoa cannot claim prejudice if he would
have taken his case to trial, only to lose and be deported in any event. We disagree.
Lee, supra, 137 S. Ct. 1958 does not stand for the proposition that a defendant
cannot show prejudice only if he or she had a reasonable chance to win at trial. In that
case, the government argued that the defendant could not show prejudice because he was
going to be deported either way; going to trial would only result in a longer sentence
before the inevitable consequence. The United States Supreme Court was not persuaded,
explaining that it did not agree with the government that it would be irrational for the
defendant to reject a plea offer in favor of trial. (Id. at p. 1968.) The court clarified:
8 A trial court has discretion to limit witness testimony. (See People v. Trinh (2014)
59 Cal. 4th 216, 246.)
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"But for his attorney's incompetence, Lee would have known that
accepting the plea agreement would certainly lead to deportation.
Going to trial? Almost certainly. If deportation were the
'determinative issue' for an individual in plea discussions, as it was
for Lee; if that individual had strong connections to this country and
no other, as did Lee; and if the consequences of taking a chance at
trial were not markedly harsher than pleading, as in this case, that
'almost' could make all the difference. Balanced against holding on
to some chance of avoiding deportation was a year or two more of
prison time. [Citation.] Not everyone in Lee's position would make
the choice to reject the plea. But we cannot say it would be
irrational to do so." (Id. at pp. 1968-1969.)
The trial court below relied on Lee in finding that Novoa would have gone to trial,
even if facing long odds of success, if there was a chance, albeit small, that Novoa could
avoid deportation.9 The People have offered no cogent argument showing the court erred
in making this determination.
Finally, the People argue they were prejudiced by Novoa's delay, and laches
should defeat Novoa's motion. For laches to apply, the People must demonstrate the
existence of three elements. First, Novoa delayed in asserting a right or a claim. Second,
the delay was not reasonable or excusable. Third, the People were prejudiced. (See
Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153 Cal. App. 4th 1144, 1157.)
Regarding the first two elements of laches, the People point out that Novoa pled
guilty in 2003 but did not seek relief until 2017. Further, they emphasize that Novoa did
not earlier seek to withdraw his plea under section 1018 or file a petition for a writ of
habeas corpus. The People's reliance on these other mechanisms to challenge the plea is
9 The trial court noted that the evidence against Lee was "overwhelming, substantial
and much more serious than Novoa's case." We agree. (See Lee, supra, 137 S.Ct. at
p. 1963 [After a search of Lee's house, law enforcement found 88 ecstasy pills, three
Valium tablets, $32,432 in cash, and a loaded rifle. Lee admitted the drugs were his.].)
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misplaced. Novoa brought a motion under section 1473.7, which became effective on
January 1, 2017. Section 1473.7 provided Novoa with new grounds on which to
challenge his guilty plea. He could not have brought such a motion until after January 1,
2017. Novoa's motion was filed five months after the statute's effective date. The People
do not argue this five-month "delay" was unreasonable. Consequentially, the People
have not shown the first two elements of laches exist.
Likewise, we are not persuaded by the People's argument of prejudice. Although
we are mindful of the difficulties facing the People in opposing a motion challenging a
guilty plea that occurred over 14 years before the motion was filed, the Legislature saw
fit to bestow these new rights on defendants, but also provided certain safeguards to
protect the People.10 (See People v. Perez, supra, 19 Cal.App.5th at p. 828.) The
prejudice the People experienced in opposing the motion is a product of the new rights
the Legislature conferred on defendants like Novoa. In other words, the prejudice is not a
product of Novoa's delay in bringing his motion. In short, the People have provided no
cogent argument that would allow us to apply the equitable defense of laches to thwart
the new statutory rights the Legislature created.
In summary, we conclude the court did not err in granting Novoa's motion under
section 1473.7. After independently applying the trial court's factual findings, which are
supported by substantial evidence, to the law, we agree with the trial court that O'Connor
10 These protections include that (1) any motion under section 1473.7 must be timely
under the statute; (2) the defendant bears the burden of proof by a preponderance of the
evidence; and (3) the court must specify the basis of its conclusion to grant or deny the
motion. (See People v. Perez (2018) 19 Cal.App.5th 818, 828.)
44
was constitutionally ineffective in representing Novoa in 2003. Novoa pled guilty
without a meaningful understanding and a knowing acceptance of the actual and potential
adverse immigration consequences of his plea. Accordingly, he is entitled to relief under
section 1473.7.11
DISPOSITION
The order is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
NARES, J.
GUERRERO, J.
11 Because we find that O'Connor rendered constitutionally ineffective representation
of Novoa, we do not reach the People's Equal Protection argument.
45