People v. Nahman CA2/2

Filed 5/2/23 P. v. Nahman CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B319838
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA076612)
v.
DAVID NAHMAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Gregory A. Dohi, Judge. Affirmed.
Karyn H. Bucur, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Viet H. Nguyen,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
Defendant and appellant David Nahman is a Canadian
citizen. On June 4, 2014, a Los Angeles jury convicted him of
(1) grand theft of personal property, namely a diamond necklace
(Pen. Code, § 487, subd. (a)),1 with a true finding that the loss or
damage exceeded $200,000, (2) second degree commercial
burglary (§ 459), and (3) grand theft from a pawnbroker or second
hand dealer (§ 484.1, subd. (a)), with a true finding that the loss
or damage exceeded $950.2 He was sentenced to a term of five
years in state prison. Following his successful appeal, the trial
court resentenced defendant to county jail. (People v. Nahman
(Feb. 18, 2016, B259175) [nonpub. opn.].)
On December 19, 2019, defendant was released from jail.
On January 13, 2020, he was placed in the custody of the
Immigration and Customs Enforcement. He is currently
awaiting removal proceedings.
On March 10, 2020, defendant filed a motion to vacate his
convictions pursuant to section 1016.5 and former section 1473.7
(the 2020 motion). The trial court denied his motion, and
defendant timely appealed. On November 9, 2021, we dismissed
his appeal from the denial of the 2020 motion without prejudice
to him refiling a new motion in light of recent amendments to
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Defendant was also tried on charges for attempted murder
and dissuading a witness by force or threat. The jury could not
reach a verdict on these two counts. Defendant was later retried
on those counts, and on May 28, 2019, the jury found him not
guilty.
2
section 1473.7. (People v. Nahman (Nov. 9, 2021, B306988)
[nonpub. opn.].)
In accordance with our November 9, 2021, order, defendant
refiled his motion to vacate his convictions pursuant to sections
1016.53 and 1473.7. The trial court denied his motion, and
defendant timely appealed.
We affirm the trial court’s order.
PROCEDURAL BACKGROUND
On February 22, 2022, after defendant’s appeal from the
trial court’s order denying his 2020 motion was dismissed,
defendant filed a new motion to vacate his convictions pursuant
to sections 1016.5 and 1473.7. He argued: (1) there was newly
discovered evidence proving his innocence; (2) he was offered
three years probation at the plea bargaining stage, but his
attorneys specifically advised him not to accept the deal, and
there was no explanation of the immigration consequences in this
case. In support, he only attached his own declaration.4
At the March 28, 2022, hearing, defendant did not call
defense counsel or the prosecutor that handled his first trial to
testify. Instead, he simply presented oral argument to the trial
court.
3 Defendant does not raise an argument pursuant to section
1016.5 in his appellate briefs.
4 His declaration was not filed in accordance with Code of
Civil Procedure section 2015.5 as defendant did not certify or
declare “under penalty of perjury” that his assertions were “true
and correct.” (Code Civ. Proc., § 2015.5; § 1102 [rules of evidence
in civil actions are applicable to criminal actions].)
3
The trial court asked defendant: “On the immigration
consequences, what did [defense counsel] do wrong?” Defendant
replied that she failed to convey “an offer from the D.A. that—to
combine all the cases and this case would be dismissed or would
be reduced to a misdemeanor.” He asserted that he “could have
accepted that deal if [he] knew that the felony conviction would
. . . result in deportation.” In other words, defendant argued that
defense counsel “could have negotiated” a plea with no
immigration consequences; she could have “at least tr[ied],” but
“she had no idea . . . about immigration. She had no idea about
criminal law anyway, too. But she had no idea about
immigration.”
The trial court tried to clarify defendant’s argument: “So
what you’re saying is that your lawyer failed you by not
negotiating a non-deportable offense; correct?” Defendant replied
that “she never even told me that [if he lost at trial that there
would be] a deportation consequence.”
The conversation continued, with the trial court
summarizing: “[A]t no time were you ever offered by the District
Attorney’s Office a plea to a non-deportable crime. That never
happened.” Defendant responded: “No. She never negotiated it.
She never suggested it. She had no idea.”
The People then asserted that at the time defendant was
being tried, he “refused to take any sort of deal whatsoever, and
he was very adamant that he was innocent of all the charges. [¶]
So this talk about a negotiation for a lesser charge that may have
happened if [defense counsel] had done better negotiation, I don’t
think is valid.” The prosecutor also pointed out that defendant
was making an argument of ineffective assistance of counsel, but
failed to notify his defense attorney of this motion. And the trial
4
court could only issue a finding of ineffective assistance of counsel
upon timely advance notice to defense counsel. (See § 1473.7,
subd. (g).)
Thereafter, defendant indicated that there was newly
discovered evidence that supported his motion. Specifically,
defendant stated that the evidence showed that one of the
victims, Amir Wolfe (Wolfe), stated that defendant did not steal
from him. Defendant added: “[T]his specific evidence . . . was
never brought in front of the jury. They never heard it. [¶] . . .
[¶] This is only one evidence that [defense counsel] didn’t bring
[to] the jurors.” The prosecutor interjected, “Your Honor, just so
we’re clear, [defendant] is saying this is evidence that his
attorney was aware of at the time of trial, he’s claiming she never
brought forward in front of the jury.” Defendant responded that
he “[had] no idea if [defense counsel] read that conversation” and
stated that he found it after reviewing counsel’s file after his
third trial. The prosecutor reiterated that the statute did not
apply because the evidence was known at the time of trial.
Ultimately, the trial court denied defendant’s motion for
the following reasons: “Number one, [defendant] cites Penal
Code section 1016.5, a section that really doesn’t apply at all.
That comes up . . . when the judge has failed to give the required
immigration advisement.
“Number two, once again, quoting from [People v. Vivar
(2021) 11 Cal.5th 510, 529–530 (Vivar)] [defendant] has [failed] to
corroborate his claims of inadequate advisement by his lawyer
with objective evidence.
“In the Vivar case, . . . there was correspondence . . . and
ample other outside evidence to show that the main focus of
Mr. Vivar’s thinking was immigration consequences.
5
“Here there’s nothing to show that the primary focus, or
even a major focus of [defendant]’s dealings with his lawyer
involved immigration consequences. He was facing a life term on
an extremely violent felony. He was facing many, many counts of
theft-related conduct. There’s nothing to show that his main
focus was avoiding deportation.
“Third, there’s no objective evidence of faulty advice. We
have nothing from [defense counsel], no interview, no statement,
and setting aside the point that [the prosecutor] makes, that
there’s a notice requirement, there’s nothing to show that, apart
from [defendant]’s assertion, there’s nothing to show that
[defense counsel] gave bad legal advice when it came to
immigration consequences, just his bald assertion about that.
“Fourth, there’s no evidence at all that the prosecution
would have offered something different. In the Vivar case, the
records show that the prosecution made an alternate offer that
would have avoided immigration consequences and that the
lawyer advised the client not to take it or didn’t emphasize it.
Here, there’s absolutely no evidence that the prosecution would
have made an offer that didn’t involve a crime of moral turpitude
rendering [defendant] subject to deportation.
“Finally, the assertions involving newly discovered
evidence are inadequate. As [the prosecutor] points out, even
[defendant] admits that the evidence had been discovered quite
sometime ago. It just hadn’t necessarily been shared with him,
so it’s not newly discovered in that sense. Moreover, it’s
described in such vague terms that doesn’t give me an adequate
basis for me to overturn the jury’s verdicts.
“So for all of these reasons, the motion is respectfully
denied.”
6
DISCUSSION
I. Relevant law
Former section 1473.7, subdivision (a)(1), provided: “A
person who is no longer in criminal custody may file a motion to
vacate a conviction or sentence for any of the following reasons:
[¶] . . . The conviction or sentence is legally invalid due to
prejudicial error damaging the moving party’s ability to
meaningfully understand, defend against, or knowingly accept
the actual or potential adverse immigration consequences of a
plea of guilty or nolo contendere. A finding of legal invalidity
may, but need not, include a finding of ineffective assistance of
counsel.” (Former § 1473.7, subd. (a)(1).) As explained by the
Legislature, this statute creates “‘an explicit right for a person no
longer imprisoned or restrained to prosecute a motion to vacate a
conviction or sentence based on 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 guilty or nolo contendere,
or based on newly discovered evidence of actual innocence, as
specified.’” (People v. Perez (2018) 19 Cal.App.5th 818, 828; see
also Vivar, supra, 11 Cal.5th at p. 517.)
On September 30, 2021, the Governor signed Assembly Bill
No. 1259 (2021-2022 Reg. Sess.), amending section 1473.7 to
expand eligibility for relief such that it now applies to any
conviction or sentence, not just a plea of guilty or nolo
contendere.5 This amendment took effect on January 1, 2022.
5 The amended statute now provides that a 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
7
Thus, a person who proceeded to trial may now challenge the
legal validity of his conviction. (See People v. Singh (2022)
81 Cal.App.5th 147, 152 (Singh).) However, the moving party
still must show an error that was “‘prejudicial.’” (Vivar, supra,
11 Cal.5th at p. 528; People v. Espinoza (2023) 14 Cal.5th 311,
319.)
“[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.” (Vivar, supra, 11 Cal.5th at p. 529.) “[A]
‘prejudicial error’ occurs under section 1473.7 when there is a
reasonable probability that the person would not have pleaded
guilty—and would have risked going to trial (even if only to
figuratively throw a ‘“Hail Mary”’)—had the person known that
the guilty plea would result in mandatory and dire immigration
consequences.” (People v. Mejia (2019) 36 Cal.App.5th 859, 871
(Mejia); accord, People v. Camacho (2019) 32 Cal.App.5th 998,
1011 (Camacho).)
As applied to the circumstances here, defendant has the
burden of showing that there was a viable alternative to trial
that he would have taken if he had been informed of the adverse
immigration consequences. (Singh, supra, 81 Cal.App.5th at
p. 154 [the trial court is “tasked with determining whether
defendant can prove by the preponderance of the evidence
whether there was a viable alternative [to trial] and that
immigration consequences of a conviction or sentence.” (§ 1473.7,
subd. (a)(1), italics added.)
8
defendant would have taken that [alternative] fully informed of
the immigration consequences”].)
“When courts assess whether a petitioner has shown that
reasonable probability, they consider the totality of the
circumstances.” (Vivar, supra, 11 Cal.5th at p. 529.) “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.” (Id. at
pp. 529–530; see also People v. Espinoza, supra, 14 Cal.5th at
p. 320.) A defendant is required to corroborate these assertions
with objective evidence. (Vivar, supra, at p. 530; accord, People v.
Soto (2022) 79 Cal.App.5th 602, 610 (Soto).) “Objective evidence
includes facts provided by declarations, contemporaneous
documentation of the defendant’s immigration concerns or
interactions with counsel, and evidence of the charges the
defendant faced.” (People v. Espinoza, supra, at p. 321.)
We independently review a trial court’s order denying a
section 1473.7 motion. (Vivar, supra, 11 Cal.5th at pp. 526–527.)
In so doing, we exercise our independent judgment to determine
whether the facts satisfy the rule of law, but give deference to
factual findings based on the trial court’s personal observations of
witnesses. (Id. at p. 519.)
II. Analysis
In the vast majority of cases addressing the sufficiency of
an immigration advisement, the criminal defendant has opted to
accept a plea and forgo his constitutional right to a jury trial.
This case presents the rare situation in which a defendant
9
purportedly rejected a plea offer and opted to roll the dice with a
jury trial. Thus, here defendant had to make two showings:
(1) that there was a viable immigration-neutral plea deal
available, which his attorney either advised him to reject or failed
to negotiate, and (2) that immigration consequences were a
“paramount concern” in defendant’s calculus of whether to accept
a plea or proceed to trial. (See People v. Espinoza, supra, at
p. 322.) He made neither.
A. No evidence of an immigration-neutral alternative to
trial or of prejudice
Defendant made no showing of a viable immigration-
neutral alternative that he would have accepted if he had been
informed of the potential adverse immigration consequences of
the charged theft-related offenses. In support of his motion,
defendant only included his self-serving declaration stating, “At
the plea bargain stage in this case the defendant was offered 3
years probation, no objection to a reduction to a misdemeanor to
plead guilty to one count of CPC 487(A).” (Bolding omitted.) He
further claimed that defense counsel told him not to accept this
plea offer and assured him that he would not be convicted
following trial.6
6 Two convictions for grand theft would render defendant
deportable. (8 U.S.C. § 1227(a)(2)(A)(ii) [a person convicted of
two crimes of moral turpitude is deportable]; Castillo-Cruz v.
Holder (9th Cir. 2009) 581 F.3d 1154, 1160 [grand theft or petty
theft is a crime of moral turpitude].) And, if sentenced to
imprisonment for at least one year, a single grand theft
conviction would also render defendant deportable. (See 8 U.S.C.
§ 1227(a)(2)(A)(iii) [any alien convicted of an aggravated felony is
deportable]; see also 8 U.S.C. § 1101(a)(43)(G) [a theft offense for
which the term of imprisonment is at least one year is an
10
Defendant contends that his self-serving declaration
constitutes objective evidence showing that the prosecution
offered a plea agreement to a single count of grand theft by a
preponderance of the evidence. While “a defendant’s declaration
[may be] one form of objective evidence relevant to a prejudicial
error inquiry” (People v. Espinoza, supra, 14 Cal.5th at p. 325),
the declaration here was inadequate. (In re Alvernaz (1992)
2 Cal.4th 924, 938 [“a defendant’s self-serving statement—after
trial, conviction, and sentence—that with competent advice he or
she would have accepted a proffered plea bargain, is insufficient
in and of itself to sustain the defendant’s burden of proof as to
prejudice, and must be corroborated independently by objective
evidence. A contrary holding would lead to an unchecked flow of
easily fabricated claims”].)
Defendant’s declaration was not filed under penalty of
perjury. Moreover, defendant did not offer any corroborating
evidence. (People v. Martinez (2013) 57 Cal.4th 555, 565 [“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”].) Although not required (People v. Espinoza,
supra, 14 Cal.5th at p. 323), we note that he failed to include any
declarations by defense counsel, correspondence with defense
counsel, or correspondence with the prosecutor about a plea
agreement that included only a single count of grand theft with a
sentence of less than one year. He also failed to call defense
counsel or the prosecutor to testify about the existence of such a
aggravated felony].) Thus, it appears that a single conviction of
grand theft with a sentence of imprisonment of less than a year
would be deportation-neutral.
11
plea offer. (Contra, Vivar, supra, 11 Cal.5th at p. 531 [the record
showed and the parties did not dispute that the defendant could
have entered a plea that would have avoided mandatory
deportation].) In fact, when questioned by the trial court,
defendant admitted that he was never offered a deportation-
neutral plea agreement.7 His argument instead was that she
“could” have negotiated such an agreement. (Wise v. DLA Piper
LLP (US) 220 Cal.App.4th 1180, 1188 [speculation is not
evidence].) And he made that argument without any expert
support. (See, e.g., People v. Espinoza, supra, 14 Cal.5th at
p. 325 [in support of his section 1473.7 motion, the defendant
offered a declaration from an immigration attorney that there
were alternatives that the prosecution could have offered that
would not have resulted in mandatory deportation].)
Moreover, nothing in defendant’s 2020 motion corroborates
his assertion that immigration consequences were “of paramount
concern” when deciding whether to reject the alleged plea offer
and proceed to trial. (People v. Espinoza, supra, 14 Cal.5th at
p. 325.) All defendant asserted at that time was that he “would
have never agreed to go to trial and risk . . . being thrown out of
the country and leaving his daughters and his life savings
behind.” (Bolding omitted.) Certainly defendant was concerned
about not wanting to leave his two daughters. But, his 2020
motion8 offers no other evidence of his community ties to the
7 This statement conflicts with the representation in his
declaration that he was offered a deal for three years probation,
which he rejected upon his attorney’s advice.
8 The People correctly note in their respondent’s brief that
defendant did not attach his 2020 motion to his current motion.
12
United States. (Cf. People v. Espinoza, supra, at pp. 322–323
[evidence showed that the defendant had lived in California for
23 years; his wife and five children were United States citizens;
his parents and siblings lived in the United States; he was the
financial provider for his family; and after he accepted the plea
deal and served his jail time, he returned home to care for his
ailing parents, ran a business to support his family, volunteered,
went to church, and participated in numerous community
organizations]; Soto, supra, 79 Cal.App.5th at p. 611 [the
defendant’s “biographical history and contemporaneous
communications” corroborate that immigration consequences
were a paramount concern]; People v. Alatorre (2021)
70 Cal.App.5th 747, 771 [the defendant’s close ties with the
United States was objective corroboration of his assertion that
avoiding deportation was a paramount concern]; Mejia, supra,
36 Cal.App.5th at p. 872 [same]; Camacho, supra, 32 Cal.App.5th
at p. 1011 [same].) Thus, defendant failed to corroborate his
assertion about the alleged plea offer. (Vivar, supra, 11 Cal.5th
at p. 530; Soto, supra, at p. 610.)
Finally, defendant argues that he established prejudice by
showing that he would have “rejected a jury trial” had he known
that convictions for theft-related offenses would have adverse
immigration consequences. However, defendant could not simply
reject going to trial and avoid any consequences. That decision
was not his, but the prosecutor’s. (See People v. Birks (1998)
The trial court did not take judicial notice of the 2020 motion, let
alone even consider it when it denied the current motion.
Because we review the trial court’s order de novo, we have
considered defendant’s 2020 motion in connection with the
instant appeal.
13
19 Cal.4th 108, 134 [prosecuting authorities ordinarily have the
sole discretion to determine whom to charge with public offenses
and what charges to bring].)
B. Newly discovered evidence
Defendant contends that newly discovered evidence shows
that he is actually innocent of the theft offenses.
In the context of section 1473.7, subdivision (a)(2), the
phrase “newly discovered evidence” applies to evidence that is
“discovered after trial or judgment, and that with reasonable
diligence could not have been discovered earlier.” (People v. Perez
(2020) 47 Cal.App.5th 994, 999, italics omitted.)
Here, as defendant admitted at the hearing, the evidence
he claims showed his innocence was discovered prior to his trial.
Defendant thus did not put forward any newly discovered
evidence.
To the extent defendant is contradictorily arguing that his
attorney may not have been aware of this evidence, that
contention does not support reversal. There is no evidence or
argument that this purportedly new evidence could not have been
discovered earlier “with the exercise of due diligence.” (§ 1473.7,
subd. (c).)
14
DISPOSITION
The order denying defendant’s motion to vacate his
conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
15