People v. Le CA4/3

Filed 05/16/23 P. v. Le CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061159
v. (Super. Ct. No. 94CF2789)
PHONG PHUC LE, OPINION
Defendant and Appellant.
Appeal from a post-judgment order of the Superior Court of Orange
County, Terry K. Flynn-Peister, Judge. Reversed and remanded with directions.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Senior Assistant Attorney General, Collette C. Cavalier and
Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
William J. Capriola, under appointment of the Court of Appeal, for
Defendant and Appellant.
* * *
1
Phong Phuc Le appeals from a post-judgment order denying his motion to
vacate his voluntary manslaughter conviction and withdraw his guilty plea pursuant to
Penal Code section 1473.7.1 Le contends he did not understand the immigration
consequences of his plea and conviction. As discussed below, we conclude Le has shown
he did not meaningfully understand the immigration consequences of his guilty plea and
suffered prejudice as a result. Accordingly, we reverse and remand with directions to
grant his section 1473.7 motion.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Guilty Plea and Conviction
On November 28, 1995, an information was filed charging Le with murder
(§ 187, subd. (a)) and active participation in a criminal street gang (§ 186.22, subd. (a)),
and alleging both crimes were committed for the benefit of, at the direction of, and in
association with a criminal street gang (§ 186.22, subd. (b)(1)). On November 30, 1995,
in exchange for dismissal of those charges, Le pleaded guilty to one count of voluntary
manslaughter (§ 192, subd. (a)).
In his written plea form, Le wrote the factual basis for his plea was that
“[o]n August 6, 1993, I aided and abetted another in the killing of a human being without
malice aforethought in Orange County with the intent to kill.” He initialed the box next
to the sentence: “I understand that if I am not a citizen of the United States the conviction
for the offense charged may have the consequence of deportation, exclusion from
admission to the United States, or denial of naturalization pursuant to the laws of the
United States.” Le signed under the statement that he had “read, understood, and
personally initialed each item above and discussed them with my attorney.” His attorney
1 All further statutory references are to the Penal Code, unless otherwise stated.
2
also signed the plea form, stating he had “explained each of the above rights to the
defendant.”
Pursuant to the negotiated disposition, the trial court sentenced Le to three
years on the manslaughter conviction. It deemed Le had served his time in custody and
ordered him to report to parole.
B. Section 1473.7 Motion
On January 5, 2022, Le filed a motion to vacate his manslaughter
conviction pursuant to section 1473.7. In the motion, he asserted that he did not
meaningfully understand the immigration consequences of his guilty plea, and he would
never have entered the plea if he had known that it would render him deportable. In a
supporting declaration, Le stated he was born on February 7, 1975, in Vietnam. In 1982,
when Le was seven years old, he and his entire family came to the United States as
refugees. Le attended elementary, middle and high school in Orange County. On August
6, 1993, when Le was 18 years old, he was arrested for an alleged gang murder. “The
crime that was the basis for the charges in this case took place in the street, but I was in
the church parking lot, parked, and in my vehicle. Because of my past, it was easy to
believe that I was involved.”
Public defender Brian Ducker was appointed to represent Le in the case.
Le stated that on November 30, 1995, he met with Ducker while in custody. Ducker
convinced Le to accept a guilty plea to voluntary manslaughter for aiding and abetting,
stating “it was a good deal because I had been incarcerated for ‘far too long’ and if I
accepted, I would be released from jail that same day.” “I believed that the conviction
was unfair as I was simply at the wrong place at the wrong time, but I felt hopeless
[because] I had no options and I had already spent a very long time in jail fighting my
case.” Le stated that Ducker did not ask him whether he was an immigrant and as a result
never informed him there would be immigration consequences to his plea.
3
After his conviction, the Department of Homeland Security detained him in
November 1997 and placed him in removal proceedings. On July 28, 1999, an
immigration judge ordered Le’s removal from the United States, but because Vietnam
was not accepting deportees at that time, he was released. Subsequently, in 2016, he
married his wife and in 2018, his daughter was born. Recently, his father was diagnosed
with prostate cancer, and Le became his primary caregiver.
Le stated that “[d]espite having signed plea forms that advised me that I
may have immigration consequences [because of the guilty plea], it was never clear to me
that I would since Mr. Ducker never mentioned any immigration consequences to me. As
[a] result, I believed there would be none.” Le asserted: “If I had known the
consequences of my plea, I would have insisted that Mr. Ducker obtain an alternative
plea, even if it meant more jail time, because more jail time would have been nothing
compared to permanent separation from my family and permanent banishment to a
country we fled from. If I could not obtain a charge that would have prevented my
deportation, I would have insisted on taking my chances at trial. . . . I know my entire
family would have supported my decision because they would have known I was fighting
for my future in the U.S. and if I was deported to Vietnam my life was in danger.” Le
explained: “At the time of my plea in this case, I had so much to lose by my deportation.
I was brought here as a refugee at the age of 7 and was a lawful permanent resident. All
of my family lived in the U.S. I grew up in the United States and attended schools here
and I lacked any ties to my country of . . . birth, Vietnam.”
Le’s attorney Ducker filed a declaration stating that he did not recall
“inquiring or confirming the immigration status of Mr. Le.” He further stated: “I do not
recall whether the immigration consequences of the plea were discussed with Mr. Le
prior to advising him to plea guilty to the manslaughter charge.”
Respondent did not file a written opposition, but voiced its opposition at the
February 4, 2022 hearing on Le’s section 1473.7 motion. The trial court denied the
4
motion without prejudice, finding that “[i]t is not clear from the [submitted] materials that
the defendant would have chosen to go to trial had he been aware of the immigration
consequences. [¶] The record also seems to indicate that it is highly unlikely [Le] would
have been able to negotiate an immigration neutral plea deal at that time that the People
would have accepted. [¶] These are extremely serious charges. And looking at the
charges, he got a very good negotiated disposition. And the facts, at least on the record,
to this Court make it look like while immigration consequences may have been important
to him, I do not have any evidence from this that they would have overwhelmed and
changed how he acted on this.”
II
DISCUSSION
A. Applicable Law
Section 1473.7 provides in relevant parts that “[a] person who is no longer
in criminal custody may file a motion to vacate a conviction or sentence” “due to
prejudicial error damaging the moving party’s ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse immigration consequences of
a conviction or sentence.” (§ 1473.7, subd. (a)(1).) “A defendant requesting relief under
section 1473.7 bears the burden of establishing by a preponderance of evidence that there
is a reasonable probability that he or she would not have entered into the plea agreement
if he or she had meaningfully understood the associated adverse immigration
consequences.” (People v. Rodriguez (2021) 60 Cal.App.5th 995, 1003.) Stated
differently, “[t]he defendant must first show that he did not meaningfully understand the
immigration consequences of his plea. Next, the defendant must show that his
misunderstanding constituted prejudicial error.” (People v. Espinoza (2023) 14 Cal.5th
311, 319 (Espinoza).)
5
We independently review an order denying a section 1473.7 motion.
(People v. Vivar (2021) 11 Cal.5th 510, 527 (Vivar).) “‘[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.) “In section 1473.7 proceedings, appellate
courts should . . . give particular deference to factual findings based on the trial court’s
personal observations of witnesses. [Citation.] Where, as here, the facts derive entirely
from written declarations and other documents, however, there is no reason to conclude
the trial court has the same special purchase on the question at issue; as a practical matter,
‘[t]he trial court and this court are in the same position in interpreting written
declarations’ when reviewing a cold record in a section 1473.7 proceeding. [Citation.].”
(Id. at pp. 527-528.)
B. Appellant Has Shown “Error” Under Section 1473.7
Here, the record establishes that Le did not meaningfully understand or
knowingly accept the immigration consequences of his plea. As Le stated in his
declaration, although he was advised that there may be immigration consequences, his
attorney never advised him that there would be immigration consequences. As a result,
he believed there would be no immigration consequences. Le further stated that had he
known of the adverse immigration consequences of the plea, he would have insisted on
negotiating an alternative plea or taking his chances at trial. In ruling on the motion, the
trial court made no express or implied credibility determination on this point.
Accordingly, Le established his own “error” in meaningfully understanding or knowingly
accepting the potential adverse immigration consequences of his manslaughter
conviction. (See People v. Mejia (2019) 36 Cal.App.5th 859, 872 (Mejia) [defendant
plainly established “error” under section 1473.7, subdivision (a), where he said that “he
would have never pleaded guilty had he known and understood ‘that this would harm me
in the future.’”]; Espinoza, supra, 14 Cal.5th at p. 320 [concluding that defendant
established he did not meaningfully understand immigration consequences of plea
6
because “[a]lthough the trial court provided a general advisement under section 1016.5
that his conviction may have immigration consequences, [defendant’s] attorney never
advised him that pleading no contest to the charges at issue would result in his
deportation.”].)
Respondent argues that the plea form, which advised Le that he may be
deported as a result of his plea and was initialed by Le and signed by his attorney,
established Le was informed and understood the immigration consequences of his plea.
However, a generic advisement that a defendant may suffer immigration consequences is
insufficient alone to establish that the defendant meaningfully understood the
immigration consequences of a plea. (See, e.g., Espinoza, supra, 14 Cal.5th at p. 320
[concluding defendant established he did not meaningfully understand the immigration
consequences of his plea despite being advised that his conviction may have immigration
consequences]; People v. Patterson (2017) 2 Cal.5th 885, 889 [“[R]eceipt of the standard
statutory advisement that a criminal conviction ‘may’ have adverse immigration
consequences” does not bar “a noncitizen defendant from seeking to withdraw a guilty
plea on that basis.”]; People v. Ruiz (2020) 49 Cal.App.5th 1061, 1065 [concluding that
“the words ‘may have’ in a section 1016.5 immigration advisement are not an adequate
immigration advisement for defendants charged with serious controlled substance
offenses”].)
Respondent’s reliance on People v. Abdelsalam (2022) 73 Cal.App.5th 654(Abdelsalam) is misplaced. There, “[d]uring the taking of the plea, appellant was told
orally and in writing that he will be deported. Not that he ‘might’ be deported, or that he
‘could’ be deported.” (Id. at p. 663.) In contrast, here, Le was advised only that he
“may” be deported. Abdelsalam is thus distinguishable.
C. Appellant Has Shown Error Was Prejudicial Under Section 1473.7
Having established “error” under section 1473.7, we turn to whether Le has
demonstrated the error was prejudicial. “[S]howing prejudicial error under section
7
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
‘reasonable probability’ ‘does not mean more likely than not, but merely a reasonable
chance, more than an abstract possibility.’ [Citation.]” (People v. Hardy (2021)
65 Cal.App.5th 312, 329.) “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.) “Also relevant are the defendant’s probability of obtaining a more
favorable outcome if he had rejected the plea, as well as the difference between the
bargained-for term and the likely term if he were convicted at trial. [Citation.] These
factors are not exhaustive, and no single type of evidence is a prerequisite to relief.”
(Espinoza, supra, 14 Cal.5th at p. 321.)
Here, in finding it not reasonably probable that Le would have rejected the
plea had he known of the immigration consequences, the trial court focused on the
probability of obtaining a different immigration-neutral negotiated disposition and the
very favorable terms of the negotiated disposition in this case. However, those facts are
not dispositive. Indeed, as the United States Supreme Court has stated, where avoiding
deportation was the determinative factor for a defendant, there is a reasonable probability
that such a defendant “would have rejected any plea leading to deportation—even if it
shaved off prison time—in favor of throwing a ‘Hail Mary’ at trial.” (Lee v. U.S. (2017)
__ U.S. __, 137 S.Ct. 1598, 1967.)
8
Le provides a compelling case that avoiding deportation to Vietnam was of
paramount concern to him at the time of the plea. Le and his entire family fled Vietnam
as refugees. As Le stated in his declaration, his deportation back to Vietnam would have
placed him in danger. (See Espinoza, supra, 14 Cal.5th at p. 322 [“a defendant’s
declaration is one form of objective evidence relevant to a prejudicial error inquiry”].)
Le’s strong community ties also provide compelling evidence in support of
a finding of prejudicial error. Le came to California when he was seven years old, and
became a lawful permanent resident. His entire family lived in the United States. He
attended elementary, middle and high school in Orange County. He lacked any ties to
Vietnam. (See People v. Lopez (2022) 83 Cal.App.5th 698, 708 [prejudice established
where the defendant moved to the United States at the age of 13, his entire family lived
here, and he lacked meaningful ties to his country of origin]; People v. Alatorre (2021)
70 Cal.App.5th 747, 771 [prejudice established where the defendant had lived in the
United States since he was a preschooler, his entire family lived here, and he eventually
married and raised children here]; People v. Rodriguez (2021) 68 Cal.App.5th 301,
324-325 [prejudice established where the defendant lived in the United States for decades
since infancy, her immediate family and children lived here, she attended school here,
and she lacked meaningful ties to her birth country]; Mejia, supra, 36 Cal.App.5th at
p. 872 [compelling evidence of prejudice where the defendant lived in the United States
since he was 14 years old, and his wife and child lived here, as well as his mother and
siblings]; People v. Ogunmowo (2018) 23 Cal.App.5th 67, 73 [prejudice established
where defendant “moved [his] life 7,700 miles across the globe” nearly a decade before,
and “was not about to accept the possibility of deportation or inability to maintain [his]
immigration status to be in the United States”]; People v. Camacho (2019)
32 Cal.App.5th 998, 1011 [prejudice established because the defendant was “brought to
the United States over 30 years ago at the age of two, has never left this country, and
attended elementary, middle, and high school in Los Angeles County. . . . [and] is, and at
9
the time of his plea was, married to a United States citizen with an American citizen son,
and now also an American citizen daughter”].)
After Le accepted the plea and was released, he married and had a daughter.
He worked numerous jobs and attended church in Orange County. He became the sole
caregiver for his elder father, who was diagnosed with prostate cancer. “These facts lend
credence to [Le’s] assertion that his community ties were important to him at the time of
his plea.” (Espinoza, supra, 14 Cal.5th at p. 322 [finding that post-release history
supported prejudice because “[a]fter Espinoza accepted the plea and served jail time, he
returned home to care for his family and community. He became the caregiver for his
elderly parents who suffer from severe medical conditions. He ran his own business to
provide for his family. He volunteered, went to church, and took part in numerous
community organizations.”].)
Applying our independent judgment, we conclude that, based on the totality
of the circumstances, it is reasonably probable defendant would have rejected the plea
had he correctly understood its actual immigration consequences. Although Le received
a very favorable disposition, his strong community ties and the risk of danger if deported
to Vietnam in 1995 establish that there is a reasonable chance he would have rejected the
plea and risked significantly more jail time to avoid mandatory deportation. As Le stated,
“more jail time would have been nothing compared to permanent separation from my
family and permanent banishment to a country we fled from.” Le has carried his burden
and established prejudice. Accordingly, he is entitled to relief. (See People v. Camacho,
supra, 32 Cal.App.5th at p. 1012, [“The appropriate remedy is to direct the trial court to
grant the motion”]; accord, Mejia, supra, 36 Cal.App.5th at p. 873.)
10
III
DISPOSITION
The order is reversed and the matter is remanded to the trial court to allow
Le to withdraw his 1995 guilty plea and vacate his manslaughter conviction.
DELANEY, J.
WE CONCUR:
GOETHALS, ACTING P. J.
SANCHEZ, J.
11