People v. Perez

Filed 1/27/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G049041

v. (Super. Ct. No. 12CF2471)

JORGE ARMANDO JUAREZ PEREZ, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Daniel J. Didier, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded. Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Defendant Jorge Armando Juarez Perez pled guilty to possessing methamphetamine for sale and possessing a firearm within 1000 feet of a school. The court placed him on probation and ordered him to spend 180 days in jail with credit for 157 days, including conduct credits. Defendant subsequently filed a timely motion to withdraw his guilty pleas. (Pen. Code, § 1018; all undesignated statutory references are to the Penal Code.) The court denied defendant’s motion without stating any reasons. Defendant contends the superior court abused its discretion. According to defendant, he knew when he entered his guilty plea that he had an immigration hold on him, he was very concerned about his immigration status, he informed his attorney of his concern, and his attorney specifically told him he had a good opportunity to avoid deportation due to the limited amount of jail time imposed by the court. Defense counsel’s representation to defendant, if made, was wrong as a matter of law. (See 8 U.S.C. § 1227 [alien convicted of aggravated felony shall be removed from country]; United States v. Valdavinos-Torres (9th Cir., 2012) 704 F.3 679, 687-687 [possession of methamphetamine for sale qualifies as aggravated felony].) We reverse. Based on the record in this matter, including the superior court’s failure to state any reason for denying defendant’s motion to withdraw his guilty plea, we conclude the court abused its discretion. Had the court denied relief because the court found the declarants lacked credibility, for example, we would have accepted the ruling. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1465 [appellate court must defer to trial court on credibility of declarants]; Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160 [trial court entitled to believe one declarant over another].) Had the evidence been in dispute, we could have relied on the evidence supporting the court’s decision to uphold the court’s order denying defendant’s motion even if the court summarily denied relief. But neither situation is present here. We remand the matter for further proceedings. This is not to say defendant is entitled to withdraw his guilty plea,