People v. DeJesus

Filed 7/26/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B293096
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA068940)
v.
NICOLAS DEJESUS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa Mangay Chung, Judge. Affirmed.
Ruzanna Poghosyan for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Zee Rodriguez and Paul S. Thies, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Nicolas DeJesus (DeJesus) appeals an order denying his
motion to vacate and withdraw his 2016 plea of no contest to
assault with a firearm. (Pen. Code, § 245, subd. (a)(2).)1 He
contends that although his trial attorney advised him of the
immigration consequences of his plea, he rendered ineffective
assistance of counsel by refusing to try his case, failing to
investigate the facts, and failing to negotiate an immigration-
neutral disposition. (§ 1473.7, subd. (a)(1).) We conclude that
DeJesus’s plea was not legally invalid as he does not offer
sufficient evidence of a prejudicial error which damaged his
ability to defend against the adverse immigration consequences
of his plea. (Strickland v. Washington (1984) 466 U.S. 668, 688;
People v. Camacho (2019) 32 Cal.App.5th 998 (Camacho).)
Furthermore, based upon DeJesus’s custodial status, he is not
eligible for relief under the statute. We therefore affirm.
BACKGROUND
DeJesus immigrated from the Philippines in 1992 and is a
permanent legal resident. He is married to a United States
citizen and is a father to seven children, all United States
citizens.
On June 15, 2016, DeJesus bought a refrigerator from a
Home Depot store.2 He put it in his vehicle and returned to the
store with the receipt. He selected another refrigerator,
approached the cashier, showed her the receipt, advised her that
he already purchased the refrigerator, and purchased trash bags.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Because DeJesus pled no contest prior to trial, the facts are
from the preliminary hearing transcript. The loss prevention
agent testified at the preliminary hearing.
2
While exiting the store, a loss prevention agent apprehended
him. DeJesus initially complied with the agent’s commands, but
then attempted to flee on foot. The agent struggled with
DeJesus, handcuffed him, and escorted him back into the store.
DeJesus drew a loaded .22-caliber pistol from his pocket and
pointed it at the agent. The agent succeeded in subduing and
disarming him, and police recovered the loaded pistol.
DeJesus was charged with assault with a firearm (§ 245,
subd. (a)(2)), shoplifting (§ 459.5), and an enhancement for
personal use of a firearm (§ 12022.5). Pursuant to a plea
agreement, DeJesus pled no contest to one count of assault with a
firearm (§ 245, subd. (a)(2)) in exchange for the high term of four
years in the state prison. The trial court dismissed the
shoplifting charge and the firearm use enhancement.
During his change of plea hearing, there was a specific
colloquy about immigration consequences and DeJesus
acknowledged understanding them. The trial court advised, “[i]f
you are not a citizen of the United States, your plea would result
in your deportation, exclusion from admission into the United
States and denial of naturalization.” DeJesus denied having
been forced or threatened to plead no contest.
The charge to which DeJesus pled is an aggravated felony
under federal immigration law, subjecting him to permanent
removal from the United States.3 Approximately one year after
his plea and sentencing hearing, federal authorities initiated
3 On appeal, he avers, and the People do not dispute, that
assault with a firearm pursuant to section 245, subdivision (a)(2)
is an aggravated felony for purposes of federal immigration law,
and subjected him to permanent removal from the United States.
3
removal proceedings against him.4 After serving his state prison
sentence, United States Immigration and Customs Enforcement
(ICE) took him into custody.
He moved to vacate his plea pursuant to section 1473.7,
subdivision (a)(1) on July 6, 2018. He argued that although his
trial attorney properly advised him of the immigration
consequences, he failed to defend against them by going to trial,
thoroughly investigating the case, or exploring alternative
dispositions. Along with his own declaration, DeJesus submitted
records regarding his legal status and a declaration from his
post-conviction attorney.
DeJesus’s post-conviction attorney declared that the trial
attorney’s file did not contain any notes or research about an
alternative plea. The file notes indicated that the trial attorney
had advised DeJesus that the struggle with the gun was out of
the camera’s view, and that she did not see DeJesus pull the gun
out of his pocket and point it at anyone. DeJesus did not submit
a declaration from his trial attorney.
In support of his motion to vacate, DeJesus declared that
his trial attorney, a public defender, refused to take the case to
trial, instead telling him “he would have to hire a good criminal
defense attorney to fight the case.” The trial attorney also
warned him that he could face 14 years in the state prison if he
rejected the prosecutor’s offer. DeJesus further declared that he
could not afford to hire an attorney.
The trial court denied the motion. It acknowledged that
advisement of immigration consequences “may not be totally
determinative of the issue,” and that it had not been presented
4 DeJesus’s application for asylum was denied on May 17,
2018.
4
with any evidence from DeJesus’s trial attorney. The trial court
ruled that DeJesus had failed to show prejudice on ineffective
assistance of counsel grounds, or by “showing that he would have
rejected the plea bargain had he known of the adverse
immigration consequences.”
DISCUSSION
DeJesus sought relief under section 1473.7,
subdivision (a)(1), which allows a person who is no longer in
criminal custody to move to vacate a conviction if it is legally
invalid due to prejudicial error damaging the moving party’s
ability to meaningfully defend against the actual or potential
adverse immigration consequences of a no contest plea.
I. History of section 1473.7
Effective January 1, 2017, the Legislature passed Assembly
Bill No. 813 (2015–2016 Reg. Sess.) adding section 1473.7 to the
Penal Code. (Stats. 2016, ch. 739, § 1.) The section provided
relief to those people who were “no longer imprisoned or
restrained.” (§ 1473.7.) According to the author, the bill was
necessary because at the time, “under California law, there [was]
no vehicle . . . for a person who is no longer in actual or
constructive custody to challenge his or her conviction based on a
mistake of law regarding immigration consequences or ineffective
assistance of counsel in properly advising of these consequences
when the person learns of the error post-custody.” (Sen. Com. on
Public Safety, Com. on Assem. Bill No. 813 (2015–2016 Reg.
Sess.) July 7, 2015, at p. 6.)
In 2018, the Legislature amended section 1473.7 effective
January 1, 2019. (Stats. 2018, ch. 825, § 2.) The amendment
changed the aforementioned language and now provides in
5
relevant part: “A person who is no longer in criminal custody
may file a motion to vacate a conviction.” (§ 1473.7, subd. (a)(1),
italics added.) The issue therefore is what the italicized language
means.
The interpretation of a statute is a question of law that we
review de novo. (Goodman v. Lozano (2010) 47 Cal. 4th 1327,
1332.) To determine the most reasonable interpretation of a
statute, we look to its legislative history and background. (Ibid.)
“ ‘As in any case involving statutory interpretation, our
fundamental task . . . is to determine the Legislature’s intent so
as to effectuate the law’s purpose. [Citation.] We begin by
examining the statute’s words, giving them a plain and
commonsense meaning. [Citation.] We do not, however, consider
the statutory language “in isolation.” [Citation.] Rather, we look
to “the entire substance of the statute . . . in order to determine
the scope and purpose of the provision . . . . [Citation.]”
[Citation.] That is, we construe the words in question “ ‘in
context, keeping in mind the nature and obvious purpose of the
statute. . . . ’ [Citation.]” [Citation.] We must harmonize “the
various parts of a statutory enactment . . . by considering the
particular clause or section in the context of the statutory
framework as a whole.” ’ ” (Camacho, supra, 32 Cal.App.5th at
pp. 1006–1007.)
In enacting the 2018 amendment, the Legislature declared,
that its intent was to give courts the authority to rule on motions
filed pursuant to section 1473.7, “provided that the individual is
no longer in criminal custody.” (Stats. 2018, ch. 825, § 1(e).) The
stated purpose of the clarification was to “ensure uniformity
throughout the state and efficiency in the statute’s
implementation.” (Stats. 2018, ch. 825, § 1(b).)
6
It is a settled principle of statutory construction that the
Legislature “ ‘ “is deemed to be aware of statutes and judicial
decisions already in existence, and to have enacted or amended a
statute in light thereof.” ’ ” (People v. Scott (2014) 58 Cal. 4th
1415, 1424.) “Courts may assume, under such circumstances,
that the Legislature intended to maintain a consistent body of
rules and to adopt the meaning of statutory terms already
construed.” (Ibid.)
A month before the Governor signed the amendment into
law, the First Appellate District issued People v. Cruz-Lopez
(2018) 27 Cal.App.5th 212 (Cruz-Lopez). There, the appellate
court reasoned that section 1473.7 “has a role in protecting a
person’s immigration status in matters that arise years or even
decades after the underlying criminal conviction. The statute
seems applicable after other and more traditional collateral relief
measures are not available. Generally, a petition for writ of
habeas corpus or section 1016.5 relief are the means available to
an appellant who is in custody or restrained and wishes to
withdraw his plea because he was not advised of immigration
consequences of his plea. [Citations.] Section 1473.7 permits
persons unable to assert habeas corpus or section 1016.5 claims
to have standing to challenge a conviction. To obtain relief per
this statute, the individual cannot be in custody or under
restraint.” (Cruz-Lopez, at pp. 220–221.)
Cruz-Lopez relied upon long standing decisional law
expanding the application for petitions for writ of habeas corpus
to include persons who were determined to be in “constructive
custody.” (Cruz-Lopez, supra, 27 Cal.App.5th at pp. 220–221.)
That law supported the court’s conclusion that the definition of
“ ‘constructive custody’ ” included people on probation and parole.
7
(Ibid., citing People v. Villa (2009) 45 Cal. 4th 1063, 1069 (Villa).)
In Villa, our Supreme Court explained: “the habeas corpus
petitioner is deemed to be in constructive custody because he or
she ‘is subject to “restraints not shared by the public generally”
[citations] and ‘may later lose his liberty and be eventually
incarcerated.’ ” (Villa, at p. 1069.) “Once a defendant has been
released and is no longer subject to parole or probation, he or she
is no longer in constructive custody.” (People v. Mbaabu (2013)
213 Cal. App. 4th 1139, 1149.) The court in Cruz-Lopez held that
section 1473.7, subdivision (a) is not applicable to a person on
probation at the time the motion is presented because they are
necessarily “imprisoned or restrained,” within the meaning of the
statute. (Cruz-Lopez, at pp. 220–221.)
II. DeJesus is not entitled to relief
A. It appears DeJesus is not eligible for relief pursuant to
section 1473.7
The People contend that the trial court properly denied
DeJesus’s motion because he was a parolee at the time the
motion was filed and was thus in constructive custody within the
meaning of the statute. Although they did not address the
amended statute in their briefs, the People rely on Villa, supra,
45 Cal.4th at page 1069, and In re Jones (1962) 57 Cal. 2d 860, in
support of their contention. In Jones, a habeas corpus
proceeding, our high court stated, “[a]ctual detention in prison is
not an indispensable condition precedent to the issuance of
habeas corpus, and persons on parole or on trial are, in a proper
case, entitled to its issuance.” (Id. at p. 861, fn. 1.)
DeJesus does not deny that he was on parole at the time
the motion was filed. He argues that a plain reading of the
statute does not exclude people on parole, and that to do so would
8
be unsupported by the legislative intent. As described, ante,
DeJesus’s interpretation lacks merit.
At his change of plea hearing, the trial court informed
DeJesus that, upon his release from state prison, he would be
placed on parole for up to three years. “[A] parole term is a
component of the inmate’s original sentence, and parolees remain
in the constructive custody of the [California Department of
Corrections and Rehabilitation] for the duration of their fixed
parole terms and are not formally ‘discharged’ from the
department’s custody until the expiration of the parole term.”
(In re E.J. (2010) 47 Cal. 4th 1258, 1282, fn. 9.) DeJesus was
sentenced to serve a four-year state prison sentence on July 19,
2016.5 On July 6, 2018, less than two years later, he filed the
motion to vacate his plea. Thus, although not raised in the trial
court, it appears that DeJesus was on parole and therefore was a
person in “criminal custody” when the motion was filed. As
explained, to be eligible for relief pursuant to section 1473.7,
DeJesus cannot be in custody. Based upon existing law at the
time of DeJesus’s motion, the legislative intent, and clarification
of the statute through the subsequent amendment, we conclude
that people on parole are not eligible for relief pursuant to section
1473.7.
5 DeJesus was awarded 69 days of credit for time spent in
custody, and was not ordered to serve his sentence in the county
jail pursuant to section 1170, subdivision (h)(1) or (2). These
facts further show that he was on parole at the time ICE
detained him.
9
B. DeJesus does not offer sufficient evidence of a prejudicial
error
Even if DeJesus were eligible for relief, the trial court
properly denied his motion on the merits. He contends that he
was deprived of the effective assistance of counsel because
counsel refused to try his case to a jury, failed to review a video of
the incident or to investigate an “immigration safe plea.”
However, he fails to offer sufficient evidence of counsel’s error, or
resulting prejudice.
At the time DeJesus filed his motion, section 1473.7,
subdivision (a)(1) provided in relevant part, “[a] person no longer
imprisoned or restrained may prosecute a motion to vacate a
conviction . . . [¶] . . . [that] is legally invalid due to a prejudicial
error damaging the moving party’s ability to meaningfully
understand, defend against, or knowingly accept the actual or
potential adverse immigration consequences of a plea of . . . nolo
contendere.” The existence of any of the grounds for relief
specified in subdivision (a)(1) must be established by a
preponderance of the evidence. (Former § 1473.7, subd. (e)(1).)
We independently review the order denying the motion to
vacate which “ ‘presents a mixed question of fact and law.’ ” (In
re Resendiz (2001) 25 Cal. 4th 230, 248; see People v. Ogunmowo
(2018) 23 Cal.App.5th 67, 76.) We defer to the trial court’s
factual determinations if supported by substantial evidence, but
exercise our independent judgment to decide whether the facts
demonstrate deficient performance and resulting prejudice.
(Resendiz, at p. 249.)
As first enacted, section 1473.7, subdivision (a)(1) required
DeJesus to demonstrate that (1) counsel’s performance fell below
an objective standard of reasonableness under prevailing norms,
10
as well as (2) a reasonable probability of a different outcome if
counsel had rendered effective assistance. (Camacho, supra, 32
Cal.App.5th at p. 1005.) However, in 2018, the amendment
added the following language to section 1473.7, subdivision (a)(1):
“[a] finding of legal invalidity may, but need not, include a
finding of ineffective assistance of counsel.” (Stats. 2018, ch. 825,
§ 2.)
In enacting the measure, the Legislature clarified that the
moving party “need not establish ineffective assistance of
counsel,” and “even if the motion is based upon errors by counsel,
the moving party need not also establish a Sixth Amendment
violation as by demonstrating that ‘counsel’s representation “fell
below an objective standard of reasonableness” ’ ‘ “under
prevailing professional norms.” ’ ” (Camacho, supra, 32
Cal.App.5th at p. 1008.)
Camacho recognized that the amendment unhinged the
requirement of an ineffective assistance of counsel finding from a
section 1473.7 claim and requires defendant “only to show that
one or more of the established errors were prejudicial and
damaged his ‘ability to meaningfully understand, defend against,
or knowingly accept the actual or potential adverse immigration
consequences of [his] plea.’ ” (Camacho, supra, 32 Cal.App.5th at
p. 1009.) To show prejudice, a person must show “by a
preponderance of evidence that he would never have entered the
plea if he had known that it would render him deportable.”
(Id. at pp. 1011–1012; People v. Martinez (2013) 57 Cal. 4th 555,
565; Jae Lee v. United States (2017) 582 U.S. [137 S. Ct. 1958,
1968–1969] (Lee); People v. Ogunmowo, supra, 23 Cal.App.5th at
p. 81.)
11
To obtain relief, DeJesus must show by a preponderance of
the evidence that the plea was legally invalid due to a prejudicial
error. The statute defines error as one that damaged his ability
to meaningfully defend against the actual or potential adverse
immigration consequences of his plea. To show prejudice,
DeJesus must establish that he would not have entered the plea
if he had known it would render him deportable. In assessing the
latter element, courts should look to “contemporaneous evidence
to substantiate a defendant’s expressed preferences.” (Lee, supra,
582 U.S. __ [137 S.Ct. at p. 1967.])
i. The trial attorney’s refusal to try the case
DeJesus first contends that his trial attorney’s refusal to
try his case to a jury damaged his ability to meaningfully defend
against his immigration consequences. Presumably, this is
because the outcome of a jury trial might have resulted in an
acquittal, or, in his view, something less than a deportable
offense. He stated via declaration at the evidentiary hearing that
his trial attorney warned that if he rejected the prosecutor’s offer
to plead to the assault alleged in count 1, he would face 14 years
in state prison.6 He declared that although his public defender
advised him that his plea “might subject [him] to deportation,” he
would “have to hire a good criminal defense attorney to fight the
case” if he wanted to go to trial. DeJesus declared that he could
not afford a private attorney, but wished to “fight [his] case and
to take it to a jury trial.” He told his lawyer that he “would take
6 At the time of the plea, DeJesus was charged in count 1
with assault with a firearm (§ 245, subd. (a)(2)) which carried a
maximum of four years in the state prison, and a firearm use
enhancement (§ 12022.5, subds. (a) & (d)) which would have
exposed him to 10 additional years in the state prison.
12
responsibility for the crime [he] committed, like taking the
refrigerator or possessing a gun, but [he] could not take
responsibility for a crime that [he had] not committed.”
During the plea colloquy, DeJesus, assisted by a Tagalog
interpreter, was asked by the trial court whether anyone “made
any other promises to you or tried in any way to force you to
plead no contest to this felony charge,” or “threatened you or
anyone close to you to get you to do so?” As to both questions,
DeJesus answered, “No,” and never reported his trial attorney’s
threat of abandonment to the trial court. Moreover, DeJesus
never declared or stated during the plea colloquy or at the
evidentiary hearing that the immigration consequences of his
plea played any role in his desire for a jury trial. To the contrary,
he declared that his primary concern was the weakness he
perceived in the case, and his belief that he was not guilty of the
charges.
“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. [Rather, they] should look to
contemporaneous evidence to substantiate a defendant’s
expressed preferences.” (Lee, supra, 582 U.S. [137 S. Ct. at
p. 1967.]) While his trial attorney’s purported threat to cease
representation is of concern, it is not corroborated by any
contemporaneous evidence. DeJesus’s declaration also
contradicted his prior statement at the change of plea hearing.
Moreover, despite apparent conversations between the post-
conviction attorney and the trial attorney, DeJesus did not offer
testimony or a declaration on behalf of the latter attorney.
DeJesus has not offered sufficient evidence of his insistence on
going to trial.
13
ii. The trial attorney’s failure to investigate the facts of
the case
Next, DeJesus contends that the trial attorney rendered
deficient assistance by failing to exploit weaknesses he perceived
in the security camera footage, specifically, that the struggle with
the gun was not caught on tape. In support of this claim,
DeJesus declared that his trial attorney advised him “that he
reviewed the recording and that the struggle with the gun was
out of the camera view.” DeJesus’s post-conviction attorney
confirmed that she also reviewed the video and “did not see
Mr. DeJesus pulling the gun out of his pocket and pointing it at
anyone.” She asserts in her declaration that when she spoke
with the trial attorney nearly two years after the preliminary
hearing he could not remember when he received the video
footage of the incident from the district attorney’s office. DeJesus
suggests that these facts show that his trial attorney did not
review the video prior to the preliminary hearing. Again,
DeJesus does not provide any evidence from the trial attorney.
Moreover, the declarations fail to address the fact that two
material witnesses testified at the preliminary hearing on behalf
of the People. The victim of the assault identified DeJesus as the
perpetrator, described the theft and struggle, identified the gun,
and affirmed that DeJesus pointed it at him. The deputy sheriff
who responded testified that he obtained the firearm from the
victim, and that it was loaded with five .22-caliber rounds.
DeJesus’s suggestion that the video footage revealed weaknesses
in the case, or that his trial attorney failed to review them are not
supported by the evidence.
iii. The trial attorney’s failure to investigate an
immigration-safe disposition
14
DeJesus next contends that his public defender’s failure to
negotiate an immigration safe disposition similarly affected his
ability to defend against the immigration consequences. In
support of this claim, his post-conviction attorney declared that
the defense file did not contain notes or any research about an
alternative plea to sections 254007 or 25850.8
In support of this contention, DeJesus relies upon People v.
Bautista (2004) 115 Cal. App. 4th 229, 240–242, which held that
“[d]efense attorneys are required to try to defend against the
negative immigration consequences of a guilty plea by exploring
alternative dispositions that can mitigate the harm.” In
Bautista, the defendant filed a petition for writ of habeas corpus
contending that his trial counsel’s representation fell below the
standard for effective assistance of counsel based upon his failure
to advise him that deportation and exclusion from readmission
was mandatory in his case under federal law. (Id. at p. 237.) In
Bautista, the defendant offered into evidence statements from
three witnesses. First, he offered a declaration from his trial
attorney who admitted that he sought a lenient sentence as
7 Section 25400 states in relevant part, “(a) [a] person is
guilty of carrying a concealed firearm when the person does any
of the following: [¶] . . . [¶] (2) Carries concealed upon the person
any pistol, revolver, or other firearm capable of being concealed
upon the person.”
8 Section 25850 states in relevant part, “(a) [a] person is
guilty of carrying a loaded firearm when the person carries a
loaded firearm on the person or in a vehicle while in any public
place or on any public street in an incorporated city or in any
public place or on any public street in a prohibited area of
unincorporated territory.”
15
opposed to an immigration neutral disposition. (Id. at p. 238.)
Second, an immigration law expert testified that he believed the
prosecution would have accepted a plea to a greater, immigration
neutral charge. (Id. at p. 240.) Finally, the defendant in
Bautista himself declared that he would not have agreed to enter
a plea if he had known the immigration consequences. (Ibid.)
The appellate court issued an order to show cause to the trial
court for a reference hearing. (Id. at p. 242.)
Unlike Bautista, DeJesus fails to offer any affirmative
evidence from which a reasonable fact-finder could conclude that
his trial attorney failed to negotiate or consider an immigration
neutral disposition. He did not offer any evidence from the
prosecutor, his public defender, or an immigration expert on this
point. Furthermore, he fails to identify any “immigration-neutral
disposition to which the prosecutor was reasonably likely to
agree.” (People v. Olvera (2018) 24 Cal.App.5th 1112, 1118.) The
only evidence in support of DeJesus’s claim is his post-conviction
attorney’s observation of an omission—that she reviewed the file
and saw that it did not contain notes or research about an
alternative plea to sections 25400 or 25850. DeJesus’s claim that
his trial attorney erred by failing to investigate an immigration-
neutral disposition is not supported by sufficient evidence.
C. Prejudice
Even assuming DeJesus’s counsel erred, DeJesus fails to
show prejudice. To support his claim, he must demonstrate “by a
preponderance of evidence that he would never have entered the
plea if he had known that it would render him deportable.”
(Camacho, supra, 32 Cal.App.5th at pp. 1011–1012.) Similarly,
in Lee, the defendant sought to vacate his conviction on the
ground that, in accepting the plea, he received ineffective
16
assistance of counsel in violation of the Sixth Amendment.
(Lee, supra, 582 U.S. [137 S.Ct. at p. 1962.]) To establish
prejudice, the defendant was required to show “ ‘a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.’ ” (Id. at
p. 1964, citing Hill v. Lockhart (1985) 474 U.S. 52, 59.)
In Lee, both the defendant and his attorney testified that
deportation was the determinative issue in Lee’s decision
whether to accept the plea. (Lee, supra, 582 U.S. [137 S.Ct. at
p. 1963.]) His attorney assured him that he would not be
deported. (Ibid.) In fact, the charge to which he pled subjected
him to mandatory deportation. (Ibid.) Lee’s attorney
acknowledged that even though he thought Lee’s case was weak,
if he had known Lee would be deported upon pleading guilty, he
would have advised him to go to trial. (Ibid.) The United States
Supreme Court found, “[W]hen the inquiry is focused on what an
individual defendant would have done, the possibility of even a
highly improbable result may be pertinent to the extent it would
have affected the defendant’s decisionmaking.” (Id. at pp. 1967–
1968.) The high court relied upon “contemporaneous evidence”
to substantiate the defendant’s expressed preferences such as the
“highly unusual” circumstances wherein Lee: (1) demonstrated
that he would have rejected the plea had he known that it would
lead to mandatory deportation; (2) testified, along with his
attorney, that “ ‘deportation was the determinative issue’ ” in
plea negotiations; and (3) his responses during the plea colloquy
confirmed the importance he placed on deportation. (Id. at
pp. 1967–1968.)
Here, no similar showing was made. DeJesus’s wish to
reject the plea was not based upon his deportability, but upon his
17
belief that he was not guilty. At the evidentiary hearing, his
post-conviction attorney confirmed that DeJesus was advised of
the immigration consequences of his plea to assault and that his
motion was based upon deficient performance by the trial
attorney, not misadvice. Thus, DeJesus fails to offer
“contemporaneous evidence” that he would have refused to enter
the plea if he had known it would render him deportable.
We conclude that DeJesus’s claim of prejudicial error is not
supported by substantial evidence. He fails to show by a
preponderance of the evidence that his plea was “legally invalid”
within the meaning of section 1473.7. The trial court did not err
in denying his motion to vacate his plea.
18
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION
MURILLO, J.*
We concur:
EDMON, P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
19