California Court of Appeal Feb 4, 2022 No. E076213Unpublished
Filed 2/4/22 P. v. Cesena 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E076213
v. (Super.Ct.No. FWV17002606)
JESUS ARMANDO CESENA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Shahla Sabet,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Eric A.
Swenson, James H. Flaherty III, and Kaleigh L. Ragon, Deputy Attorneys General, for
Plaintiff and Respondent. 1
INTRODUCTION
In 2017, defendant and appellant Jesus Armando Cesena pled guilty to one count
of possession for sale of a controlled substance. (Health & Saf. Code, § 11351.) In 2019,
require “corroboration and objective evidence because a declaration by defendant is
suspect by itself.” (Id. at p. 224.) “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]; see People v. Mejia (2019) 36 Cal.App.5th 859, 872 [“[i]n a postconviction
setting, courts should not simply accept a defendant’s statement of regret regarding the
plea, courts should also ‘look to contemporaneous evidence to substantiate a defendant’s
expressed preferences.’ ”].)
Defendant has presented no such objective, corroborating evidence here. The only
relevant evidence he offers is his self-serving declaration and the declarations of his wife,
sister, and brother-in-law. Generally, self-serving declarations lack trustworthiness.
(People v. Duarte (2000) 24 Cal.4th 603, 611.) In other words, we are not bound to give
full credence to the statements in defendant’s declaration because of his obvious interest
in the outcome of the proceeding, and we would say the same about statements by his
wife, sister, and brother-in-law. (See People v. Beck (1961) 188 Cal.App.2d 549, 553.)
Moreover, we agree with the trial court’s assessment that defendant and his supporters
could say anything they wanted “because [plea counsel was] not here to defend himself.” 16
We realize that defendant was unable to obtain a declaration from his plea counsel since
counsel passed away, and that defendant was unable to obtain counsel’s case file.
However, the unfortunate circumstance of his plea counsel’s passing does not relieve
defendant of his burden of proof. (§ 1473.7, subd. (e)(1).)
Furthermore, we find defendant’s statements in his declaration that he pled guilty
not knowing he would be deported not credible in light of the signed plea agreement and
the court’s own taking of his plea. Defendant initialed the box next to the statement in
the plea agreement stating: “I understand that if I am not a citizen of the United States,
deportation, exclusion from admission to the United States, and denial of naturalization
may, and for certain offenses will, result from a conviction of the offense(s) to which I
plead guilty.” (Italics added.) Defendant initialed the boxes verifying that his attorney
explained everything in the agreement to him, and he fully understood everything. The
record also shows that when the court was taking his guilty plea, it specifically told
defendant that his conviction would result in deportation. The court said, “And do you
understand, finally, if you’re not a citizen of the United States consequences of
conviction will include deportation, exclusion from admission to the United States, or
denial of naturalization under the laws of the United States? Do you understand this?”
Defendant said, “Yes, your Honor.” Furthermore, in defendant’s declaration, he
expressly conceded, “I do remember the judge telling me in court that with this crime I
would be deported.” Additionally, the court confirmed with plea counsel that he went
over the form with defendant, and defendant understood everything on it. The court
found that defendant read and understood the form, understood the charge to which he 17
was pleading and the consequences for the charge, and was freely and knowingly
entering the plea.
Next, we turn to defendant’s argument that his plea counsel ineffectively
represented him by failing to make a counter offer or negotiate an immigration-safe plea
deal. He specifically claims his counsel should have attempted to negotiate an
immigration-safe plea “by pleading to a different offense [that was non-deportable], or by
striking the name of the drug from the record of conviction in a Paulus4 defense and not
stipulating to the police report as a basis for the guilty plea to render the plea immigration
safe.” People v. Perez (2018) 19 Cal.App.5th 818 (Perez) is instructive in this regard. In
that case, as in this one, there was “no indication in the record that the prosecution was
willing to agree to an immigration safe disposition. Similarly, there [was] no suggestion
that [the defendant’s] counsel did not attempt to negotiate such a disposition.” (Id. at
p. 830.) Because “[a]n appellant has the burden of establishing, based on the record on
appeal and based on facts, not speculation, that counsel rendered ineffective assistance of
counsel,” the lack of any evidence regarding counsel’s negotiations or lack thereof was
fatal to the defendant’s attempt to vacate his conviction on those grounds. (Ibid.)
The same is true here. Defendant only speculates, with no corroborating evidence,
that his plea counsel did not attempt to secure an immigration-safe plea and that the
prosecutor would have agreed to such. Defendant offered this speculative statement in
his declaration: “I don’t think [my counsel] made any immigration safe plea offers
4 Matter of Paulus (B.I.A. 1965) 11 I. & N. Dec. 274 (Paulus). 18
because he didn’t know about immigration . . . .” (Italics added.) Defendant also
presented declarations by two putative experts that an immigration-safe plea might have
been available. We note that one of the expert’s declarations was based on his review of
the other declarations submitted with the motion, which were suspect. (See ante.)
Moreover, the mere fact that immigration-safe pleas have been negotiated in other cases,
or that one might have existed here, is not evidence that plea counsel failed to negotiate
for such a plea.
Additionally, in this case, it is clear that counsel negotiated for the best disposition
that he could get. Counsel was able to secure a plea in which defendant was permitted to
plead to only one count of three very serious charges and had a significant weight
enhancement dismissed as part of the agreement. With over 40 pounds of heroin and
fentanyl, it is difficult to imagine any non-deportable offense that defendant would be
permitted to plead to in lieu of the charged offenses. Furthermore, there was no
indication in the record that the prosecution was willing to agree to an immigration-safe
plea. (Perez, supra, 19 Cal.App.5th at p. 830.) In fact, the prosecutor at the motion
hearing suggested the opposite. Although the prosecutor did inform the court that he had
no information of any counteroffers made (e.g., in the district attorney’s case file), he also
said that defendant “was not going to be done . . . any favors” in this case based on the
severity of the charges and the fact that he “appeared to be a major narcotics trafficker,
not merely a street-level dealer moving small amounts of drugs.”
Citing Paulus, supra, 11 I. & N. Dec. 274, defendant contends his counsel should
have attempted to negotiate to strike the name of the drug from the record of conviction 19
and not stipulate to the police report as a basis for the guilty plea in order to render the
plea immigration safe. However, this claim lacks merit. In Paulus, an alien was
convicted of violating a California statute that made it a crime to “ ‘offer unlawfully to
sell and furnish a narcotic . . . and . . . then sell and deliver . . . a substance . . . in lieu of
such narcotic.’ ” (Paulus, supra, 11 I. & N. Dec. at p. 275.) Noting “the record being
silent as to the narcotic involved in the conviction” and the fact California’s definition of
“narcotic” differed from that under federal law, the Board of Immigration Appeals upheld
an order terminating deportation proceedings because “it [could not] be said for
immigration purposes, that [the defendant] has been convicted of a law relating to
narcotic drugs.” (Ibid.)
Paulus involved a factual dispute over the nature of the drug the alien had been
selling or furnishing. In contrast, defendant here was charged with crimes specifically
identifying the controlled substances as heroin and fentanyl. Moreover, defendant
presented no evidence that simply striking the name of the drugs involved here would
have protected him from being deported, or that the prosecution would have agreed to
strike the name of the drugs from the record.
2. Defendant has failed to establish prejudice
Even assuming his counsel did err in his representation, defendant has failed to
establish that he was prejudiced. He argues that he would not have taken the plea deal if
he had known the consequence of eventually being deported because of his four children,
his home, and his life in the United States. Defendant’s declaration contains the only
direct evidence presented as to whether he would have taken the plea had he been aware 20
of the immigration consequences. However, “ ‘a defendant’s self-serving statement—
after trial, conviction, and sentence—that with competent advice he or she would have
accepted [or rejected] 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.’ ” (People v. Bravo (2020) 58 Cal.App.5th 1161, 1171, overruled
in part on other grounds, as stated in Vivar, supra, 11 Cal.5th at p. 526.) We note
defendant did not state in his declaration that he told his plea counsel his priority was to
remain in the United States with his family and job, in order for his counsel to try to
mitigate the consequences of the plea.
Defendant did state in his declaration that he would not have accepted the plea
deal if he knew he was going to be deported, and he “would have gladly done more days
of jail” or “even risked going to trial.” First, defendant did know that he would be
deported because the court expressly told him so. Second, defendant’s statement lacks
credibility. Defendant was charged with two counts of possession for sale of a controlled
substance—heroin (Health & Saf. Code, § 11351, counts 1 & 3), and it was alleged in
count 1 that the substance exceeded one kilogram by weight (Health & Saf. Code,
§ 11370.4, subd. (a)(1)). Thus, he would have been facing a maximum sentence of nine
years.5 The evidence against him was strong, as the police found him in possession of
5 A person convicted of possession for sale of a controlled substance is subject to imprisonment for two, three, or four years. (Health & Saf. Code, § 11351.) A person convicted of transportation or sale of a controlled substance is subject to imprisonment for three, four, or five years. (Health & Saf. Code, § 11352, subd. (a).) A person convicted of a violation of Health and Safety Code section 11351, where the substance [footnote continued on next page] 21
over 40 pounds of drugs. Pursuant to the plea agreement, defendant pled guilty to count
1, in exchange for a term of only three years in county prison and the dismissal of the
other counts and the weight enhancement.
Under these circumstances, although it is possible, it is not likely he would have
risked going to trial, being convicted of all counts, and facing a lengthy prison term as
well as the same immigration consequences.
D. Defendant Has Failed to Establish His Own Misunderstanding
To the extent defendant is contending he is entitled to relief due to his own lack of
understanding, apart from any error by his counsel, we disagree. He claims “the
declarations, plea form, and plea transcripts showed by a preponderance [he] did not
meaningfully understand the adverse immigration consequences of his plea.” However,
for the same reasons discussed ante, we conclude the record belies his claim. (See
§ I.C.1., ante.) Defendant signed the plea agreement, and he was advised in open court
that his conviction in this case would result in deportation. Moreover, as the court
observed, he clearly understood English.
Defendant claims he was confused by the circumstances. In his declaration, he
stated, “I do remember the judge telling me in court that with this crime I would be
exceeded one kilogram, would receive an additional three years. (Health & Saf. Code, § 11370.4, subd. (a)(1).) Defendant could receive up to five years for the Health and Safety Code section 11352 violation. Defendant could receive one-third the midterm for one of the Health and Safety Code section 11351 violations, which would add one additional year. Finally, defendant was subject to an additional three years for the weight enhancement. This assumes that one of the Health and Safety Code section 11351 violations would be subject to Penal Code section 654. 22
deported.” He further said he thought the judge was “just going over the paperwork” and
alleged that it “[didn’t] make sense to me that he told me then I would be deported, or
denied naturalization or not be able to be admitted to the United States because of this
crime, because he had just told me that I wasn’t going to be on probation or parole.”
However, defendant did not ask the court any questions or express any confusion, but
rather confirmed that he understood the consequences of his plea.
Defendant also asserts that he had signed “a similar plea form in 2008 when
charged with a DUI, the charge was reduced, and he was not deported,” and that this
circumstance “add[ed] to [his] confusion.” However, again, defendant did not express
any confusion to his counsel or the court before signing the plea agreement in the current
case, and he assured the court he understood the agreement he was entering and the
consequences of that agreement.
Defendant further claims he was confused because, after he entered the plea, he
was allowed to complete a job assignment before he went to jail, pursuant to a deal his
counsel worked out. He also traveled to Mexico following the plea and was let back into
the United States without issue, and he applied for a replacement green card. However,
these circumstances occurred after he pled guilty. Thus, they had no bearing on his
claimed lack of understanding or confusion about the immigration consequences of his
plea, at the time he entered his plea.
We conclude that defendant failed to meet his burden of establishing by a
preponderance of the evidence that his plea counsel rendered ineffective assistance or that
he (defendant) did not understand the immigration consequences of the plea. Because 23
defendant failed to meet his burden of proof, the trial court properly denied the section
1473.7 motion.
We briefly note defendant’s additional claim that the court erred by denying the
motion to vacate, in part, on the ground that there was a large quantity of drugs, since the
weight enhancement (Health & Saf. Code, § 11370.4) was dismissed as part of the plea
agreement. This claim lacks merit because the record shows the court based its denial on
the lack of evidence to prove ineffective assistance of counsel, and the record showed
defendant understood the consequences of his plea. The court commented that with this
type of case, there was little a defense attorney could do to “save the client from
immigration consequences,” and it specifically noted that “the Judge very clearly, very
clearly on the record” told defendant that he would be deported, and defendant said he
understood.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J.
MENETREZ J. 24
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's motion to vacate his conviction, finding he failed to establish by a preponderance of the evidence that he suffered prejudicial error or ineffective assistance of counsel regarding the immigration consequences of his plea. The court held that the defendant's self-serving declarations were insufficient to overcome the contemporaneous record, which showed he was properly advised of the immigration consequences of his guilty plea.
Issues
Whether the trial court erred in denying the defendant's motion to vacate his conviction under Penal Code section 1473.7 without an evidentiary hearing.
Whether the defendant established ineffective assistance of counsel regarding the immigration consequences of his plea.
Whether the defendant demonstrated prejudice resulting from his plea counsel's alleged failure to advise him of mandatory deportation.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The court here properly held a hearing, heard from all relevant witnesses (through their declarations), offered to hear from any additional witnesses from either side, and considered the motion on the merits.”
“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.”