California Court of Appeal Oct 13, 2020 No. E073027Unpublished
Filed 10/13/20 P. v. Quiroz CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E073027
v. (Super.Ct.No. ICR15593)
REYNALDO VILLA QUIROZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Russell L. Moore, Jr.,
Judge. Affirmed.
Marty V. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn
Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
In 1992, defendant and appellant Reynaldo Villa Quiroz pled guilty to two counts
of committing a lewd and lascivious act on a child under the age of 14. (Pen. Code,1
§ 288, counts 1 & 2.) A trial court sentenced him to six years on each count to be served
review the ruling, not the court’s reasoning and, if the ruling was correct on any ground,
we affirm.” (People v. Geier (2007) 41 Cal.4th 555, 582.)3
B. Defendant Has Failed to Establish He Is Entitled to Relief
Section 1473.7, which became effective on January 1, 2017, provides that a person
who is no longer imprisoned may move to vacate a judgment if 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.” (§ 1473.7,
subd. (a)(1).) Thus, a defendant is required to demonstrate that he or she suffered
prejudicial error. (Ibid.) “The court shall grant the motion to vacate the conviction or
sentence if the moving party establishes, by a preponderance of the evidence, the
existence of any of the grounds for relief specified in subdivision (a).” (§ 1473.7,
subd. (e)(1).)
3 In light of our independent determination, we need not address defendant’s claim that the motion court applied an incorrect standard in ruling on the motion to vacate. 9
“Ineffective assistance of counsel that damages a defendant’s ability to
meaningfully understand, defend against, or knowingly accept the actual or potential
adverse immigration consequences of a guilty plea, if established by a preponderance of
the evidence, is the type of error that entitles the defendant to relief under section 1473.7.
[Citation.] To establish ineffective assistance of counsel, a defendant must demonstrate
that his counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms and that he was prejudiced by the deficient performance.”
(People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75; see Strickland v. Washington
(1984) 466 U.S. 668, 687-688.) We note that in 2018, the following language was added
to section 1473.7, subdivision (a)(1): “[a] finding of legal invalidity may, but need not,
include a finding of ineffective assistance of counsel.” (See People v. DeJesus (2019) 37
Cal.App.5th 1124, 1133.) In other words, a superior court can make a finding of legal
invalidity “if the defendant simply proves by a preponderance of the evidence a
‘prejudicial error damaging [his] ability to meaningfully understand, defend against, or
knowingly accept the actual or potential adverse immigration consequences of a plea of
guilty or nolo contendere.’ ” (People v. Mejia (2019) 36 Cal.App.5th 859, 871 (Mejia).)
At the outset, we note the People’s claim that defendant’s motion under section
1473.7 was untimely. The trial court stated that it was not going to find the motion
untimely. We assume arguendo that defendant’s motion was timely, address it on the
merits, and conclude that the court properly denied it.
10
1. Defendant Has Failed to Establish IAC
Defendant contends his trial counsel’s performance was defective under Padilla v.
Kentucky (2010) 559 U.S. 356 (Padilla). In Padilla, the defendant, a lawful permanent
resident, pled guilty to drug charges involving the transportation of a large amount of
marijuana in his tractor-trailer. Before the defendant pled guilty, his counsel failed to
advise him that he would face deportation after pleading guilty and, in fact, told him he
“ ‘ “did not have to worry about immigration status since he had been in the country so
long.” ’ ” (Id. at p. 359.) The United States Supreme Court concluded that it was not
difficult to find deficiency since the consequences of the defendant’s plea “could easily
be determined from reading the removal statute, his deportation was presumptively
mandatory, and his counsel’s advice was incorrect.” (Id. at p. 369.) The Supreme Court
stated that to provide effective assistance of counsel, “we now hold that counsel must
inform [the] client whether [the] plea carries a risk of deportation.” (Id. at p. 374.)
In People v. Patterson (2017) 2 Cal.5th 885, the California Supreme Court set
forth its interpretation of the Padilla decision as follows: “As the United States Supreme
Court has observed, ‘Immigration law can be complex,’ and there are ‘numerous
situations in which the deportation consequences of a particular plea are unclear or
uncertain.’ (Padilla, supra, 559 U.S. at p. 369.) This means that there are indeed some
cases in which the most that can reasonably be said is that the conviction ‘may’ have
adverse immigration consequences. But when, as in this case, federal immigration law
specifies in ‘succinct, clear, and explicit’ terms that a criminal conviction will result in
deportability, the United States Supreme Court has held that a criminal defense attorney
11
must accurately advise his or her client of that consequence before the client enters a
guilty plea. (Id. at pp. 368-369.) The generic advisement under section 1016.5 is not
designed, nor does it operate, as a substitute for such advice.” (People v Patterson,
supra, 2 Cal.5th at p. 898.) Thus, where mandatory deportation is certain based upon a
defendant’s plea, Padilla requires that criminal defense attorneys advise their clients of
that consequence prior to entering their guilty pleas.
However, Padilla is not applicable here since defendant pled guilty nearly 18
years before the opinion in Padilla was issued. In Chaidez v. United States (2013) 568
U.S. 342 (Chaidez), the Supreme Court concluded that Padilla “announced a new rule”
by imposing an obligation on trial counsel to understand and accurately explain the
immigration consequences of a plea to a defendant before the entry of that plea.
(Chaidez, at pp. 352-354, 357-358; see Padilla, supra, 559 U.S. at p. 369.) Furthermore,
the Supreme Court held that Padilla could not be applied retroactively to cases that were
final at the time the opinion in Padilla was issued. (Chaidez, at p. 358.) We are unaware
of any California cases that have applied Padilla retroactively. Therefore, under the
then-existing authorities, defendant’s plea counsel here had no affirmative obligation in
1992 to research and advise defendant of the actual immigration consequences of his
plea. (Chaidez, at pp. 357-358.)
In any event, defendant failed to meet his burden of establishing by a
preponderance of the evidence any prejudicial error on his plea counsel’s part that
damaged his ability to understand, defend against, or knowingly accept the immigration
consequences of his plea. (§ 1473.7, subds. (a)(1) & (e)(1).) He claims his counsel failed
12
to inform him of any immigration consequences of his plea, failed to investigate the
impact of the plea on his immigration status, and failed to negotiate any immigration-safe
dispositions. The only evidence he offers that is relevant to his claims is his self-serving
declaration and testimony. We note the ease with which a defendant may claim his
counsel erred. (See In re Alvernaz (1992) 2 Cal.4th 924, 938.) However, “[a]n allegation
that trial counsel failed to properly advise a defendant is meaningless unless there is
objective corroborating evidence supporting appellant’s claimed failures.” (People v.
claims require “corroboration and objective evidence because a declaration by defendant
is suspect by itself.” (Id. at p. 224.) Moreover, “courts should not disturb a plea merely
because of subsequent assertions by a defendant claiming his lawyer was deficient. The
reviewing court should also assess additional contemporaneous evidence.” (Ibid.)
Defendant has presented no such corroborating evidence here. In his declaration,
he alleged that he was assigned a public defender. Attorney Beldon was assigned and
was succeeded by Attorney Morris. He alleged that his counsel did not ask about his
citizenship or advise him of the immigration consequences of his plea. He also stated he
entered the United States in 1982, met the victim’s family in 1992 (they were neighbors),
became friends with the victim, and took her to his relative’s home in Palm Springs when
she said wanted to run away due to abuse in her home. Defendant denied having any
sexual contact with her. He also stated his attorneys did not inform him of any counter
offers made to the district attorney. He stated that he married his wife in 2018, they had
two daughters, ages 7 and 9, and they owned a home, and that he had no friends or family
13
in Mexico. In addition to his declaration, he attached other exhibits in support of his
motion, including the charging documents, the minute orders from the arraignment,
change of plea, and sentencing hearings, his removal papers, his criminal history, an
immigration petition for an alien relative filed by his wife, and a declaration by his
cousin’s husband, with whom he and the victim stayed in Palm Springs.
Defendant subsequently filed a supplemental brief in support of his motion, stating
that he was denied his right to a fair hearing, that during the plea hearing the court had to
repeatedly permit his counsel to consult with him, that he did not knowingly give up his
right to a speedy trial, and he did not fully understand the nature of the charges against
him or the proceedings. He attached as exhibits a declaration by his current attorney
concerning his removal proceedings and the corresponding papers. None of the evidence
defendant presented corroborates the claims regarding his plea counsel’s alleged
deficiencies. There is simply no corroborating evidence that defense counsel did not
investigate and advise defendant of the actual immigration consequences of his plea.
We realize that defendant was not able to obtain a declaration from his plea
counsel, since that attorney (Morris) passed away. In his reply brief, defendant asserts
that he “should not be penalized for being unable to submit a declaration from his
deceased trial counsel.” However, the unfortunate circumstance of his plea counsel’s
passing does not relieve him of the burden of proof to establish grounds for relief.
(§ 1473.7, subd. (e)(1).) Also, we observe that he was represented by another attorney
(Beldon) below but has not submitted a declaration from him.
14
We turn to defendant’s contention that his plea counsel rendered deficient
representation by failing to negotiate “a disposition with less dire immigration
consequences.” To the extent he means that his counsel should have negotiated an
immigration safe plea, “there is no evidence, only speculation, that an ‘immigration safe’
plea could have been negotiated.” (People v. Tapia (2018) 26 Cal.App.5th 942, 955
(Tapia).) There is no evidence that defense counsel did not consider, propose and
negotiate an immigration neutral offer nor that there was any immigration neutral offer
that a prosecutor might reasonably accept, particularly where the defendant was charged
with three counts of lewd acts with a minor involving sexual intercourse with an 11 year
old.
2. Defendant Has Not Demonstrated a Prejudicial Error That Damaged His
Ability to Meaningfully Understand or Knowingly Accept the Immigration Consequences
of His Plea
Aside from failing to establish IAC, defendant has not met his burden of showing
a prejudicial error that damaged his ability to meaningfully understand or knowingly
accept the adverse immigration consequences of his plea. (Mejia, supra, 36 Cal.App.5th
at p. 871.) He points to his testimony at the section 1473.7 hearing that he was confused,
his counsel did not explain the charges to him, and he pled guilty because he felt
pressured by his attorney. He also asserts there was a language barrier. However, the
transcript from the plea hearing refutes these claims.
First, the transcript shows defendant was assisted by a certified Spanish interpreter
at the plea hearing. Second, it shows that the prosecutor advised him of the potential
15
immigration consequences of the plea, and he affirmed that he understood the
advisement. Furthermore, it demonstrates that if he did not understand something, he felt
comfortable stopping the proceedings to ask questions. He asked questions on several
topics, including the maximum penalty imposed and restitution. When the prosecutor
asked if he understood that the court could consider any dismissed counts at the time of
sentencing, he responded, “What do you mean? I don’t understand.” When the
prosecutor inquired whether he asked his attorney everything he needed to ask in order to
understand the negotiated disposition, defendant said, “Yes. But I wish to have some
more time before I’m sentenced to talk to him.” The court then allowed him more time to
talk to his counsel. We observe that defendant did not ask any questions when he was
given the immigration advisement, but just confirmed that he understood.
As the court found when it denied his motion to vacate, defendant was “quite
active during the plea negotiations,” asking many questions. The court observed that it
did “not appear that [he] was unable to chime in and ask questions when he had them.”
Under these circumstances, defendant has not shown that a prejudicial error occurred that
damaged his ability to meaningfully understand or knowingly accept the consequences of
his plea. (§ 1473.7, subd. (a)(1).)
Furthermore, defendant has not established that any alleged error prejudiced him.
To establish prejudice under section 1473.7, a defendant must show he would not have
entered the plea if he had known it would render him deportable. (Mejia, supra, 36
Cal.App.5th at p. 871.) He alleged in his declaration that, had he known of the
consequences of pleading guilty, he would not have done so. However, “a declaration by
16
defendant is suspect by itself.” (Cruz-Lopez, supra, 27 Cal.App.5th at p. 224.)
Defendant did not offer any contemporaneous evidence to corroborate his claim. (Mejia,
at p. 872.) Moreover, the statements he made in his declaration did not actually support
his claim.
In Mejia, supra, 36 Cal.App.5th 859, the court found that the defendant
demonstrated prejudice by showing that he would not have pled guilty, knowing the
immigration consequences, because of his strong ties to the United States and lack of
connection to Mexico. The defendant had been living in the United States for eight
years, and, at the time of his guilty plea, his wife, son, mother, and six siblings were
living here. His only remaining family tie to Mexico was his father, who passed away
right before he entered his plea. (Id. at p. 872.)
Here, defendant’s declaration did not establish a strong tie to the United States or a
lack of connection to Mexico. He alleged that he came to the United States in 1982, and
his wife, two daughters, father, stepmother, and siblings all reside here; further, only his
mother and grandmother lived in Mexico, but “were both shot to death in 1993.”
However, defendant pled guilty in 1992; thus, his mother and grandmother were still
alive in Mexico at that time. Also, he did not meet his wife until 2000 (they married in
2018), and he did not have his daughters until 2009 and 2011. In other words, these
factors would not have been considerations for him at the time of his plea.
In addition, the evidence against defendant was strong. He admitted to the police
that he and the victim had sexual intercourse, and he knew it was wrong to have sex with
an 11-year-old child. The victim also told the police they had sex. Defendant was
17
charged with three counts of violating section 288, and each count carried a maximum
penalty of eight years; yet, pursuant to the plea agreement, he was offered probation.
Under these circumstances, it is not reasonably probable that he would have declined the
plea agreement and risked going to trial, being convicted of all counts and facing a
lengthy prison term as well as the same immigration consequences.
In his reply brief, defendant asserts the “corroborating evidence” that he has
“steadfastly fought his deportation” for over eight years. However, he does not explain
how the fact that he has been fighting his deportation demonstrates a prejudicial error
occurred, which damaged his ability to meaningfully understand or knowingly accept the
consequences of his plea. (§ 1473.7, subd. (a)(1).) We note he testified that, prior to
being placed in removal proceedings in 2010, he had not made any claim that he did not
understand anything in his 1992 plea.
Furthermore, as the trial court did, we give weight to the fact that the plea judge
found defendant knowingly, intelligently, and voluntarily waived his rights. As the
motion court emphasized, the plea judge made this finding after watching defendant,
hearing his responses, and watching his counsel confer with him.
Ultimately, defendant’s self-serving declaration alleging his plea counsel’s
deficiencies is not corroborated by anything else in the record. Because defendant failed
to meet his burden of proof to establish the elements of section 1473.7, subdivision
(a)(1), we conclude the court properly denied the motion to vacate his convictions. (See
Tapia, supra, 26 Cal.App.5th at p. 956; see also Lee v. United States (2017) 137 S.Ct.
1958, 1967 [“Courts should not upset a plea solely because of post hoc assertions from a
18
defendant about how he would have pleaded but for his attorney’s deficiencies.”].) We
note that the court denied defendant’s motion without prejudice to give him the
opportunity to bring the motion again if he has additional witnesses, facts, or law to
present.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
McKINSTER Acting P. J.
RAPHAEL J.
19
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's motion to vacate his 1992 convictions, finding he failed to establish that he suffered prejudicial error or ineffective assistance of counsel regarding the immigration consequences of his guilty plea.
Issues
Whether the trial court erred in denying the defendant's motion to vacate his convictions under Penal Code section 1473.7.
Whether the defendant established ineffective assistance of counsel under the standards set forth in Padilla v. Kentucky.
Whether the defendant demonstrated prejudicial error that damaged his ability to understand or accept the immigration consequences of his plea.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The court inferred from the fact that defendant understood he had to register as a sex offender, that he also understood the possible immigration consequences of his plea.”
“The unfortunate circumstance of his plea counsel’s passing does not relieve him of the burden of proof to establish grounds for relief.”
“Defendant has not shown that a prejudicial error occurred that damaged his ability to meaningfully understand or knowingly accept the consequences of his plea.”