People v. Garcia

Filed 6/15/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B310824
(Super. Ct. No. 2012023734)
Plaintiff and Respondent, (Ventura County)
v.
DIEGO DENOVA GARCIA,
Defendant and Appellant.
“I’m screwed.” “I can’t see my life in Mexico.” These were
appellant’s contemporaneous statements to himself on the day he
pled guilty to “sale/transportation/offer to sell” oxycodone in 2012.
Both his attorney and the trial court advised him at that time
that he would be deported based upon his negotiated plea. Seven
years later, his contemporaneous remarks to himself and the two
warnings sprang to life as he found himself the subject of
deportation proceedings. Appellant did not want to live in Mexico
in 2012. He does not want to live in Mexico now. We do not fault
appellant for wanting to stay in the United States. But, as we
explain, we do fault him for appealing the trial court’s order
denying his motion to vacate the plea on the asserted ground that
he did not meaningfully understand the immigration
consequences of his plea. (Pen. Code, § 1473.7.)1 He knew
exactly what he was doing in 2012. The trial court factually so
found based upon live-witness testimony. This is a poor platform
upon which to predicate an appeal. We will affirm.
FACTS AND PROCEDURAL HISTORY
In 2012, appellant was charged with felony counts of
sale/transportation/offer to sell a controlled substance (count 1)
and possession for sale of a controlled substance (count 2).
(Health & Saf. Code, §§ 11352, subd. (a), 11351.) He pled guilty
to count 1, offer to sell oxycodone in exchange for 36 months
formal probation with the service of 180 days in county jail.
Count 2 was dismissed pursuant to the plea agreement.
Felony Disposition Statement and Plea Proceedings
At the time of his plea, appellant signed a document
entitled, “Felony Disposition Statement,” which provides in part:
“My attorney has explained to me the direct and indirect
consequences of this plea, including the maximum possible
sentence. I understand the following consequences could result
from my plea: [¶] . . . [¶] If I am not a citizen, I could be deported,
excluded from the United States or denied naturalization. (Pen.
Code, § 1016.5.) If I am not a citizen and am pleading guilty to
an aggravated felony, conspiracy, a controlled substance offense,
a firearm offense, . . . or a domestic violence offense, I will be
deported, excluded from the United States, and denied
naturalization. (8 U.S.C. §§ 1101(a)(43), 1182, 1227.)”
Appellant initialed each section and signed the document
acknowledging that he discussed with his attorney and
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
understood the consequences of his plea. Appellant’s attorney
also signed the document acknowledging that he explained the
direct and indirect consequences of this plea to appellant and was
satisfied appellant understood them. When the trial court asked
appellant whether he understood the information in the plea
form, appellant said that he did.
Section 1473.7 Motion to Vacate/Hearing
In December 2019, appellant was in the process of
deportation proceedings. He filed a motion to vacate his guilty
plea based on ineffective assistance of counsel. He provided a
declaration that stated, “I am a non-US citizen currently [living]
in the United States. . . . [¶] [¶] . . . When I first met with
[counsel], he suggested I plead guilty right away so ‘everything
can just be over with.’ . . . [¶] [Counsel] did not ask about my
immigration status when I met with him. At the time of
completing the plea form I do not recall discussing with [counsel]
specific immigration consequences of my plea. I was not advised
by [counsel] that this conviction would be a bar to naturalization,
and I could be deported and denied readmission to the United
States. [¶] [Counsel] did not recommend that I consult with an
immigration attorney, and I do not recall [counsel] suggesting a
plea to an alternative lesser charge to avoid the serious
immigration consequences I am now facing. [¶] [¶] Had I been
properly informed I would have sought a different disposition or
gone to trial.”
At the hearing on the motion to vacate appellant’s plea,
appellant’s “plea counsel” testified that he did not independently
recall the case but retrieved his file from storage that contained
his notes. He testified it was his practice to identify his client’s
immigration status and if unclear, he would proceed as if the
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client was not a citizen, which he did in this case. Counsel
testified that he spoke with appellant’s immigration attorney in
2012.2 He also testified that it was his practice in 2012 to refer to
the Immigration Legal Resource Center chart (ILRC) that
summarized the immigration consequences for a specific charge
and then discuss it with his client. He reviewed the chart with
appellant and advised him prior to his plea that he would be
“deportable.” Finally, counsel testified that it is his practice to
review the Felony Disposition Statement with the client, read
each marked section “verbatim,” and ask whether the client has
any questions, which plea counsel did in this case as confirmed by
his signature on the statement.
Contrary to his declaration, appellant initially testified that
he did recall counsel asking about his citizenship status, but
counsel did not advise him of alternate pleas or immigration
consequences of his guilty plea. He also testified that counsel did
not review the Felony Disposition Statement with him, and
instead, told him to sign the plea “so we can get over this.” But
later during his testimony, he acknowledged that to “[his]
recollection,” counsel did explain each section of the plea form
that he initialed and signed. On cross examination and over the
objection of his new attorney, appellant admitted that he pled
guilty even though he knew he was going to be deported. He also
acknowledged that when he got home after the plea hearing, he
thought about it, and said to himself: “I’m screwed.” “I can’t see
my life in Mexico.”
2The record is silent on what appellant’s immigration
attorney told appellant’s “plea counsel.”
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TRIAL COURT RULING
The trial court denied appellant’s motion to vacate his
conviction. In a six-page ruling, it factually found appellant’s
credibility to be “severely lacking,” and his declaration was
“deceptively phrased” to mislead the court that counsel had not
recommended appellant meet with an immigration attorney
when counsel had, in fact, consulted with appellant’s immigration
attorney. The trial court found counsel’s testimony “credible” and
consistent with his declaration. It also found “no persuasive
contemporaneous evidence to substantiate [appellant’s] assertion
that he was unaware of the potential adverse immigration
consequences at the time he entered his plea.” To the contrary,
the trial court found the record “strongly supports” the conclusion
that appellant was “well advised and fully understood the
likelihood that he would be deported.”
DISCUSSION
Section 1473.7 and the Standards of Review
Pursuant to section 1473.7, a person who is no longer in
criminal custody may file a motion to vacate a conviction or
sentence where “[t]he conviction or sentence is legally invalid due
to prejudicial error damaging the moving party’s ability to
meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of a
conviction or sentence.” (Id., subd. (a)(1).) “A successful section
1473.7 motion requires a showing, by a preponderance of the
evidence, of a prejudicial error that affected the defendant’s
ability to meaningfully understand the actual or potential
immigration consequences of a plea. [Citation.]” (People v. Vivar
(2021) 11 Cal.5th 510, 517 (Vivar).)
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In 2018, the Legislature amended section 1473.7 to clarify
that “[a] finding of legal invalidity may, but need not, include a
finding of ineffective assistance of counsel.” (§ 1473.7, subd.
(a)(1); Stats. 2018, ch. 825, § 2.) (See People v. Abdelsalam (2022)
73 Cal.App.5th 654, 661; People v. Camacho (2019) 32
Cal.App.5th 998, 1010-1011.)
“[S]howing prejudicial error under section 1473.7,
subdivision (a)(1) means demonstrating a reasonable probability
that the defendant would have rejected the plea if the defendant
had correctly understood its actual or potential immigration
consequences. When courts assess whether a petitioner has
shown that reasonable probability, they consider the totality of
the circumstances. [Citation.] Factors particularly relevant to
this inquiry include the defendant’s ties to the United States, the
importance the defendant placed on avoiding deportation, the
defendant’s priorities in seeking a plea bargain, and whether the
defendant had reason to believe an immigration-neutral
negotiated disposition was possible.” (Vivar, supra, 11 Cal.5th at
pp. 529-530.)
Our Supreme Court recently endorsed a limited form of
independent standard of review of a trial court’s ruling on a
section 1473.7 motion to vacate. (Vivar, supra, 11 Cal.5th at pp.
524-528.) “‘[U]nder independent review, an appellate court
exercises its independent judgment to determine whether the
facts satisfy the rule of law. [Citation.]’” (Id. at p. 527.)
Independent review is not the equivalent of de novo review. “An
appellate court may not simply second-guess factual findings that
are based on the trial court’s own observations.” (Ibid.) Instead,
appellate courts should give particular deference to factual
findings and credibility determinations based on the trial court’s
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personal observations of witnesses. (Id. at pp. 527-528.) When
the facts derive entirely from written declarations and other
documents, the appellate court need not defer to the trial court’s
findings because the trial court and appellate court are in the
same position when interpreting a cold record in a section 1473.7
proceeding. (Vivar, at p. 528.) “Ultimately it is for the appellate
court to decide, based on its independent judgment, whether the
facts establish prejudice under section 1473.7.” (Ibid.)
The Trial Court Did Not Err in Denying Appellant’s Motion
Appellant has many theories why he did not understand
the immigration consequences of his plea, and if he had, he would
have rejected it. The record does not support appellant’s
contention.
The trial court did not find that appellant suffered from a
cognitive impairment due to an injury he sustained in 2010. In
addition, the trial court did not find appellant was unaware that
“the drug plea constituted pleading to an ‘aggravated felony’” that
would trigger mandatory deportation. The plain and
unambiguous language contained in the Felony Disposition
Statement states: “If I am not a citizen and am pleading guilty to
. . . a controlled substance offense, . . . I will be deported.” (Italics
added.) And, his attorney that he reviewed the 2012 ILRC chart
with appellant, which advised a violation of Health and Safety
Code section 11352 was an aggravated felony.
APPELLATE REVIEW
Even on independent review, appellant’s contentions would
fail. Appellant acknowledged that after he got home from the
plea proceeding, he thought, “I’m screwed” because he could not
see his life in Mexico. At the time of the plea proceeding,
appellant had lived in the United States for approximately seven
years with his family. His contemplation of his life in Mexico,
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contemporaneous with his guilty plea, is persuasive evidence
appellant knew he would be deported. Furthermore, appellant
admitted that he pled guilty despite knowing he would be
deported, but he only did so upon advice of counsel. This may
have been good advice. Appellant avoided being sentenced to
state prison.
Appellant also contends that it is reasonably probable that
had he understood the immigration consequences of his plea, he
would have “held out for a better deal” or “taken the case to trial.”
These claims are conclusional. He did not provide any evidence
to suggest the district attorney’s office would have considered an
immigration-neutral disposition. Indeed, counsel testified that
based on his assessment, both at the time of the plea and at the
hearing on the motion to vacate, “the case against [appellant] was
very strong.”
Also missing is a declaration from his immigration attorney
from 2012 to corroborate his contention that she met with
appellant’s counsel to “ensure that any plea entered . . . would
not lead to [appellant’s] deportation.” “[W]hen a defendant seeks
to withdraw a plea based on inadequate advisement of
immigration consequences, we have long required the defendant
to corroborate such assertions with ‘“objective evidence.”’” (Vivar,
supra, 11 Cal.5th at p. 530; People v. Bravo (2021) 69 Cal.App.5th
1063, 1074.)
This is particularly true where, as here, the trial court
found appellant’s credibility “severely lacking,” while counsel’s
testimony was “credible.” As Vivar instructs, these “factual
determinations that are based on ‘“the credibility of witnesses the
[superior court] heard and observed”’ are entitled to particular
deference, even though courts reviewing such claims” may reach
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a different conclusion based on its independent examination of
the evidence. (Vivar, supra, 11 Cal.5th at p. 527.) “Courts should
not upset a plea solely because of post hoc assertions from a
defendant about how he would have pleaded but for his attorney’s
deficiencies. Judges should instead look to contemporaneous
evidence to substantiate a defendant’s expressed preferences.”
(Lee v. United States (2017) __ U.S. __, __ [137 S.Ct. 1958, 1967].)
That is what happened here.
DISPOSITION
The order denying the motion pursuant to section 1473.7 is
affirmed.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Benjamin F. Coats, Judge
Superior Court County of Ventura
______________________________
Andre L. Verdun, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Rama R. Maline, Deputy Attorney
General, for Plaintiff and Respondent.