California Court of Appeal Apr 13, 2022 No. E075214Unpublished
Filed 4/13/22 P. v. Gomez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E075214
v. (Super.Ct.No. FVI02462)
RICARDA GOMEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,
Judge. Affirmed.
Ferrentino & Associates, Correen Ferrentino, and Julie Goerliner, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Adrian R.
Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
In 1995, defendant and appellant Ricarda Gomez pled guilty to one count of
possession for sale of cocaine base. (Health & Saf. Code, former § 11351.5, count 1.) A
trial court placed her on formal probation for a period of three years, with 180 days in
county jail. On January 1, 2017, Penal Code1 section 1473.7 went into effect. (Stats.
2016, ch. 739, § 1.) It permits a defendant to challenge a conviction based on a guilty
plea where prejudicial error affected the defendant’s ability to understand the
immigration consequences of the plea. (Pen. Code, § 1473.7.) In 2018, defendant filed a
motion to vacate her conviction under Penal Code sections 1016.5 and 1473.7. The court
denied the motion.
On appeal, defendant contends the court erred in denying her motion to vacate her
conviction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
A confidential reliable informant advised the police that subjects by the names of
Rosa and Toto were selling cocaine from their residence. The informant agreed to make
1 All further statutory references will be to the Penal Code unless otherwise indicated.
2 The factual background is taken from the probation officer’s report and the sheriff’s department report.
2
a controlled buy of cocaine, and he/she was given sheriff’s funds to make the purchase.
The informant purchased rock cocaine from Rosa3 and turned it over to the police.
On September 30, 1993, officers executed a search warrant at defendant’s
residence and found defendant and two males at the kitchen table packaging narcotics.
They found a blue lighter and a razor blade next to the packaging materials and rock
cocaine. Defendant was seated at the end of the table with 11 pieces of rock cocaine
directly in front of her. Three of the pieces were already wrapped and sealed. One of the
males was found with a piece of rock cocaine in his hand. The other male was seen
dropping marijuana under the kitchen table, and a search of his person revealed
approximately 1/4 gram of methamphetamine in his front pocket. One of the officers
searched defendant and found $433 in cash. The officers also located documents and
bills under defendant’s name and the names Ricarda G. Aguirre and Rosita Gomez,
which were believed to be her aliases. The sheriff’s report noted that this was the fourth
search warrant served on defendant, and that the three prior warrants were served on her
and her husband, C.L., also known as Todo.
On November 28, 1994, the district attorney charged defendant and her two
codefendants with possession for sale of cocaine base. (Health & Saf. Code, former
3 Documents located during a later search of the residence revealed that Rosa was one of defendant’s aliases, which included Rosalva Garcia Loya, Ricarda G. Aguirre, and Rosita Gomez.
3
§ 11351.5, count 1.)4 At a plea hearing on January 19, 1995, defendant appeared in court
in custody, represented by appointed counsel. She was assisted by a Spanish language
interpreter. Defendant signed a plea agreement and agreed to plead guilty to count 1 as
charged, in exchange for a three-year period of probation, with 180 days in county jail.
The plea agreement contained the following immigration advisal: “If I am not a citizen
of the United States, I could be deported, or excluded from admission to the United
States, or denied naturalization.” Defendant put her initials next to that advisal. She also
initialed the box indicating that she was not under the influence of any substance that
could interfere with her ability to understand what she was doing, or that she was
suffering from any condition that could have that effect. She acknowledged that she
could not read or understand English but had the assistance of an interpreter to read the
form to her, and she understood all the contents of the form. The form was signed by
defendant, the interpreter, and the prosecutor, but defense counsel’s signature was
missing.
On February 14, 1995, the court held a hearing and found compliance with
Boykin5 and Tahl6, and it confirmed the plea with both parties. The court confirmed with
defense counsel that he received a copy of the probation report and confirmed with
4 One of the codefendants was also charged with misdemeanor possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a), count 2.)
5 Boykin v. Alabama (1969) 395 U.S. 238.
6 In re Tahl (1969) 1 Cal.3d 122. 4
defendant she was ready to proceed. The parties submitted on the probation officer’s
recommendation. The court withheld pronouncement of judgment and placed defendant
on probation for a period of three years on specified conditions, including that she be
sentenced to 180 days in county jail. Defendant confirmed that the interpreter reviewed
the probation conditions with her, and she understood and accepted them.
In 1997, the court ordered defendant’s probation revoked for failure to report to
probation as directed and failure to keep the probation officer informed of her residence.
Her whereabouts were unknown, and a bench warrant was issued.
In 2004, defendant was arrested. She said she remembered being convicted of a
crime in 1995, but because she was “going crazy” and was given medications, she did not
remember anything about being placed on probation. She said after being convicted, she
was deported to Mexico and came back to the United States within the time period of
1996 to 1998. She said she did not report to probation because she did not remember she
had to do so. Defendant said she did not think it was fair that she was being locked up
since she was not living the lifestyle she was living before.
The court held a hearing on the probation revocation petition on August 2, 2004.
Defendant admitted the allegations, and the court found her to be in violation of
probation. However, it then reinstated her on probation on the same terms, but with some
modifications, including that she serve 365 days in county jail.
On April 24, 2013, defendant filed a motion to vacate her conviction pursuant to
sections 1018 and 1016.5. The motion was denied on December 5, 2014.
5
On October 3, 2018, defendant filed a motion to vacate her conviction, pursuant to
sections 1016.5 and 1473.7, alleging that the court failed to advise her that her guilty plea
may have adverse immigration consequences, and her plea counsel failed to investigate
or discuss immigration consequences with her at all. She also claimed her counsel failed
to seek an immigration-safe alternative such as pleading to being an accessory after the
fact (§ 32), and that she was not told she could proceed to trial to avoid adverse
immigration consequences. In her declaration, defendant asserted that she was the
mother of seven children, including one was who was severely disabled. She also
asserted that her other son was murdered in October 1994, so she was depressed and on
medication after her arrest in this case. Additionally, she asserted that she was a victim
of domestic violence, she was very poor, and her father was abusive to her and her
children. Defendant further stated she was told by the interpreter that entering the plea
was her best option, and she pled guilty because she was told she would only serve 120
days, but if she did not plead guilty, she would get a longer sentence and lose her
children. Defendant declared, “All I cared about was getting back to my children,” and if
she knew she would be deported, she never would have entered the plea, and she would
have asked for a better offer or would have gone to trial.
On January 22, 2019, defendant filed a supplemental brief, arguing she lacked the
ability to meaningfully understand or knowingly accept the actual or potential
immigration consequences of her plea. She reiterated that she was not told about any
immigration consequences, the interpreter told her the plea was her best option, she was
depressed and on medication while in jail due to the death of her son, and she would not
6
have pled guilty if she had known she would be deported. She also pointed out that her
plea counsel did not sign the plea form, and that the transcript from the sentencing
hearing on February 14, 1995, was void of any advisement by the court of the
immigration consequences of her plea.7
The People filed an opposition to defendant’s motion, arguing that the plea form
demonstrates the section 1016.5 advisements were discharged appropriately, defendant
signed the agreement and attested under penalty of perjury that her plea counsel
explained everything on the form to her, and that in 1995, plea counsel did not have an
affirmative duty to provide immigration advice or negotiate an immigration-safe plea.
Furthermore, in contrast to her claim that she was depressed and on medication at the
time of the plea, defendant assured the court that she was entering her plea freely and
voluntarily, and she was not under the influence of any medications or suffering from any
condition that interfered with her ability to understand what she was doing.
Defendant filed a reply brief and attached numerous exhibits, including a
declaration from an immigration attorney stating that in 1995, plea counsel had a duty to
investigate her immigration status, research the immigration consequences of the plea and
inform her of such consequences, and that plea counsel rendered ineffective assistance.
Defendant also attached letters of support from her children, grandchildren, and others, as
well as a declaration from her plea counsel. Plea counsel stated that he had no
recollection of her case. He asserted that it was his practice at that time to advise clients
7 We note that the reporter’s transcript from the plea hearing has apparently been destroyed. 7
that entry of a guilty plea could result in deportation, and he also relied upon the form
advisement. He said he did not attempt to negotiate immigration-friendly pleas at that
time, and it was not his practice to do immigration research or consult with an
immigration attorney on the consequences of a plea in a specific case.
The court held a hearing on the motion to vacate on February 22, 2019.
Defendant’s plea counsel testified that in 1995 it was his standard practice to go over the
police report and the applicable law with his client, describe any potential pleas and
defenses, discuss any offer from the district attorney, and let his client determine whether
or not he/she wanted to further litigate the matter or accept the offer. He would also
review each box in a plea form and go over his/her rights, explaining them in common
language, rather than verbatim. He would have an interpreter assist him for a Spanish
speaker. As to the section 1016.5 advisement, he would typically say words to the effect
that if a person were to enter the plea, it could result in deportation. It was not his
practice to do immigration research, and he had no recollection one way or the other, in
the instant case, if he consulted with an immigration attorney before defendant entered a
plea. Looking at the plea form, he said it appeared his law firm was appointed to
represent defendant in this case, and his name was handwritten by him on the plea form.
However, he had no independent recollection of this case. When asked about the fact
that he did not sign this plea form, he said, “sometimes things get missed,” but it
appeared that he filled in the form, and he would assume he was the attorney that
appeared on the case that day. He said the missing signature could “just be an oversight.”
8
On cross-examination, plea counsel said it was not his practice to do immigration
research because, at that time, it was generally thought that the advisement on the plea
form was appropriate. He again stated, at that time, he thought that type of charge could
result in deportation or exclusion from admission, and that is what he advised the client.
He further testified that if his client appeared depressed or under the influence of any
substance, it would be his custom and practice to ask for a continuance. He also testified
that if a client told him that her child had been recently murdered, and it was obvious they
were incapacitated, he would put the matter over until they could be in a better state.
Since the plea in this case went forward that day, he assumed there were not any concerns
in that regard.
Defendant testified on her own behalf. She said she was born in Mexico, never
went to school, did not speak English, and could only read a little in Spanish. She said
her youngest son had mental retardation and autism, and she had to do everything for
him. He could not feed, bathe, or go to the bathroom by himself. He was five years old
in 1995. She was the primary caretaker of him and her other five children. Defendant
said she was given medication for depression after her son’s murder in 1995, while she
was in jail. She further testified that when she was in custody, her primary concern was
that her father, who came and got her children when she was arrested, was mistreating
them.
Regarding her guilty plea, defendant testified that she was not told of the
consequences of pleading guilty. She said she did not remember the court talking to her
in the courtroom. She also said she was still depressed from her son being murdered
9
three months earlier, and she was on the medication the jail gave her when she went to
court. Defendant said she did not know that after she pled guilty she would be deported
to Mexico. She further testified that when she signed the plea form, the most important
thing to her was to return to her children. She said she did not meet her plea counsel
before the day she signed the plea agreement, and she never talked to him outside of the
courtroom. She did talk to him at the hearing, with an interpreter, but she could not
remember how long. She also said no alternatives to pleading guilty were discussed with
her, and that if she knew she would be deported and separated from her children, who
were United States citizens, she would have gone to trial.
On cross-examination, the prosecutor asked defendant if a Spanish interpreter
assisted her in reading the plea form when she signed it, and she said she could not
remember. She added, “I was really doing bad in my head.” When asked whether she
remembered if plea counsel was present when the interpreter went over the plea form
with her, she said she remembered him being there but did not remember the interpreter
reviewing the form with her. When asked if she initialed the boxes on the plea form, she
said she did not remember. When asked whether the Spanish interpreter read her the
paragraph stating she understood she could be deported, she said she did not remember.
However, she agreed that, if someone had not interpreted the form for her, she would not
have been able to read it to understand where to initial and sign it. She did not remember
signing the plea form but said, “it does seem like my handwriting.” When asked if
someone told her she would be going to jail if she pled guilty or that she could go to trial,
she said she did not remember.
10
The prosecutor then asked defendant if she had sold drugs to somebody 10 days
before the police came to her home with the search warrant. She said no. However, she
did admit there was rock cocaine in her house when the police arrived. At first, she said
she did not remember where she was when the police entered her house. Then she agreed
she was sitting at the kitchen table in front of several rocks of cocaine. She then changed
her mind and said she was not sitting, but the one sitting there was the father of her
children.
The prosecutor reminded defendant she testified that her main concern was who
was going to take care of her children while she was in jail. He asked if it was fair to say
she would rather have taken the 180 days in jail and deportation, as opposed to spending
three, four, or five years in prison, with the same result of being deported, so that she
would be out of custody sooner to be with her children. She said yes. The prosecutor
showed her a copy of her declaration that was filed in support of her motion and asked if
she had seen it before. At first, she said no. She then conceded her signature was on the
form, but still said, “I don’t remember.”
The prosecutor who handled the plea in 1995 also testified. He had no
independent recollection of this case. However, he said his custom and habit was to
review a file, determine an appropriate disposition, communicate the offer to the defense
attorney, then either have a conference with the court about the offer made, or just have
the defense attorney discuss the offer with his/her client. Typically, once the defendant
agreed to the terms, the defense counsel would complete the plea form and return it to
him, and he would sign it. When asked if he was aware there were immigration
11
consequences of some criminal pleas back in 1995, he said yes and added, “We would
discuss that at the time of the plea.” He said if a defendant requested an interpreter in
court, that would be a sign to him that the person was not lawfully in the country or was
here on a visa. In that case, he would advise the defense counsel that the person may be
here illegally. He would verify with the defense counsel that they had gone over the
immigration consequences with their client before he signed the plea form. The
prosecutor also testified that, under the facts of this case, he assumed he would have
prevailed if he had taken it to trial. He further testified that because defendant was facing
deportation in this case as a result of a conviction, whether by trial or by plea, he would
not have been willing to offer any plea that would have allowed her to avoid adverse
immigration consequences.
After hearing from the parties, the court stated, “I cannot turn a blind eye to the
obvious that [defendant’s] answers are convenient. She cannot remember signing. Her
lawyer didn’t talk to her. She would have gone to trial. She was under the influence of
medication at the time of the plea. She cares for [her autistic son] 24 hours a day, 7 days
a week, and no one else can care for him. Yet . . . she was looking at state prison on what
appears to be a straight forward case with little defense.” The court then denied the
motion, based on the testimony, the evidence, and the exhibits presented.
DISCUSSION
The Court Properly Denied Defendant’s Motion
Defendant argues the court erred in denying the motion to vacate her conviction
under section 1473.7. She claims her plea counsel rendered ineffective assistance by
12
misinforming her about the immigration consequences of her plea since he only provided
the general advisement on the felony plea form (i.e., that she could be deported) and
failed to advise her that deportation was mandatory. She also contends that he failed to
consult with an immigration attorney, and failed to “recognize or become aware of” her
severe depression regarding the recent murder of her teenage son, which impacted her
ability to appreciate the immigration consequences of her plea. She further claims her
counsel failed to file a motion to withdraw the plea after receiving the probation report
indicating she was born in Mexico. Defendant asserts that she provided corroborating
evidence of her mental condition and that she was a single mother with one son who had
been murdered and another son that had autism, whom she had to care for. She argues
she was prejudiced by counsel’s errors since she would not have pled guilty to a charge
that would cause her to be deported and permanently separated from her children. She
further claims that “whether focusing on [her plea counsel’s] misadvice” or her own
misunderstanding, “either error supplies prejudice under section 1473.7.” The People
contend that defendant has failed to establish any error, and the record shows she pled
guilty knowing her conviction would lead to removal. We conclude the court properly
denied her motion.
A. Standard of Review
Our Supreme Court recently determined the standard of review for section 1473.7
motion proceedings. In People v. Vivar (2021) 11 Cal.5th 510, 526 (Vivar), the court
13
endorsed the independent standard of review.8 Under independent review, an appellate
court exercises its independent judgment to determine whether the facts satisfy the rule of
law. (Id. at p. 527.) When courts engage in independent review, they should be mindful
that independent review is not the equivalent of de novo review. (Ibid.) An appellate
court may not simply second-guess factual findings that are based on the trial court’s own
observations. (Ibid.) Factual determinations that are based on the credibility of witnesses
the superior court heard and observed are entitled to particular deference, even though
courts reviewing such claims generally may reach a different conclusion from the trial
court on an independent examination of the evidence even where the evidence is
conflicting. (Ibid.)
In section 1473.7 motion proceedings, appellate courts should similarly give
particular deference to factual findings based on the trial court’s personal observations of
witnesses. (Vivar, supra, 11 Cal.5th at pp. 527-528.) However, where the facts derive
entirely from written declarations and other documents, “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.]
8 We reserved ruling on defendant’s request for judicial notice, filed on April 16, 2021, for consideration with this appeal. She requests that we take notice of The People’s answer brief on the merits in People v. Vivar, S260270 (on petition for review to the California Supreme Court from People v. Vivar, supra, 43 Cal.App.5th 216). We now deny that request. 14
Ultimately it is for the appellate court to decide, based on its independent judgment,
whether the facts establish prejudice under section 1473.7.” (Id. at p. 528.)
B. Defendant Has Failed to Establish She is Entitled to Relief
Section 1473.7, which became effective on January 1, 2017 (Stats. 2016, ch. 739),
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 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).)
“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 (Ogunmowo); see Strickland v.
Washington (1984) 466 U.S. 668, 687-688.) We note that in 2018, the following
15
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 [her] 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.)
1. Defendant has failed to establish her counsel’s performance was deficient
Defendant asserts that her counsel misinformed her about the immigration
consequences of her plea since he only advised her of the possible immigration
consequences. She also contends he failed to consult with an immigration attorney. She
claims her 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
16
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.)
Padilla is not applicable here since defendant pled guilty 15 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; 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.) Therefore,
defendant’s plea counsel here had no affirmative obligation in 1995 to research and
advise defendant of the actual immigration consequences of her plea. (Id. at pp. 357-
358.) As such, counsel’s representation did not fall below the then-contemporary
reasonable objective standard of practice.
Defendant argues that the obligation under Padilla “had long been the law in
California,” and cites section 1016.2, which stated that it was the intent of the Legislature
to codify Padilla and related case law. (§ 1016.2, subd. (h).) However, section 1016.2
did not become effective until 2016. (Stats. 2015, ch. 705, § 1; Assem. Bill No. 1343).)
Defendant also cites People v. Soriano (1987) 194 Cal.App.3d 1470 (Soriano), in
support of her claim. In that case, the defendant submitted a declaration stating that he
spoke with his attorney twice prior to sentencing. He informed her that he was an
immigrant, and she told him that if he pled guilty he would serve just eight months in
17
county jail. He asked his attorney if he would be deported if he pled guilty, and she said
he would not. Subsequently, the defendant asked his attorney whether a guilty plea
would prohibit him from obtaining citizenship. The attorney responded in the negative.
He again asked if he would be deported, and she assured him he would not. The
defendant stated that based on these assurances, he pled guilty. (Id. at p. 1478.)
Defendant’s reliance on Soriano is misplaced since that case is factually
distinguishable. Contrary to defendant’s claim, Soriano did not establish that defense
counsel had a duty to inform her of the actual, not merely possible, immigration
consequences of her plea. In Soriano, the defendant stated in a declaration that he told
his counsel he was an immigrant. (Soriano, supra, 194 Cal.App.3d at p. 1478.) It was
uncontested “that counsel, knowing defendant was an alien, resident in this country less
than five years at the time he committed the crime, did not make it her business to
discover what impact his negotiated sentence would have on his deportability.” (Id. at
p. 1480.) The defendant specifically asked if he would be deported if he pled guilty. (Id.
at p. 1478.) The Soriano court concluded that the trial counsel was ineffective because
her response to the defendant’s immigration questions was insufficient. (Id. at p. 1482.)
This was so because counsel assured the defendant twice, in response to his direct
questions, that he would not be deported. (Id. at p. 1478.)
Unlike Soriano, there was no allegation and no evidence here that defendant asked
her counsel about the immigration consequences of her plea, that counsel similarly
misadvised her, or that defendant entered her guilty plea based on her counsel’s false
assurances. (Soriano, supra, 194 Cal.App.3d at p. 1479.) Thus, Soriano is inapposite.
18
Defendant also claims that “the inaccuracies of advice and irregularities of the
proceedings” are evidenced by the fact that the plea form was not signed by her plea
counsel. As the court noted in its ruling, counsel erred by not signing the plea form;
however, we agree with the court that it appears to have been an oversight. This is
corroborated by the fact that defense counsel specifically testified that he recognized his
handwriting on various parts of defendant’s change of plea form. He also testified that
his practice was to sit with his client and the interpreter while the interpreter translated
the change of plea form for the client. We also observe that at the sentencing hearing, the
court reviewed the plea form, found compliance with Boykin and Tahl, confirmed the
plea, and both plea counsel and the prosecutor stipulated. Moreover, the prosecutor
signed the plea agreement and, although he had no recollection of this case years later, he
testified that it was his practice to verify with defense counsel that they had gone over the
immigration consequences with their client before he signed a plea form. In any event,
plea counsel’s error in not signing the plea agreement is not an error that damaged
defendant’s ability to meaningfully understand the immigration consequences of her plea.
(Ogunmowo, supra, 23 Cal.App.5th at p. 75.)
To the extent defendant is claiming that her plea counsel did not advise her of any
immigration consequences at all, she failed to establish such error.9 In her declaration,
she alleged that she was “not told about any immigration consequences for any potential
plea,” that “[n]o one discussed going to trial,” that she pled guilty because she was told
9 We note that this claim is at odds with her claim that counsel misadvised her by only telling her she could be deported, rather than that she would be deported. 19
she would only serve 120 days, but if she did not plead guilty, she would get a longer
sentence and lose her children, and that she “was not told [she] could be deported.” “An
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. Cruz-Lopez (2018) 27 Cal.App.5th 212, 223-224.) “[T]he ‘easy’ claim that
counsel gave inaccurate information further requires corroboration and objective
evidence because a declaration by defendant is suspect by itself. The fact is 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. We find the
statements in her declaration that she pled guilty without having been told about any
immigration consequences not credible in light of the signed plea agreement. Defendant
initialed the box next to the statement in the plea agreement stating: “If I am not a citizen
of the United States, I could be deported, or excluded from admission to the United
States, or denied naturalization.” Furthermore, she initialed the boxes verifying that she
understood she had the right to a trial, that she had sufficient time to consult with her
attorney, that her attorney explained everything in the agreement to her, and she fully
understood everything. Although defendant claims she does not remember the interpreter
reviewing the form with her or reading the above-cited statement in the agreement, and
she does not remember putting her initials on the plea form, such claims are not credible,
20
in light of the fact that the interpreter signed the agreement stating he translated the entire
plea form to her. Moreover, the form reflects defendant’s initials and signature.
Defendant also claims that her counsel erred by failing to recognize her severe
depression regarding her son’s murder and by failing to file a motion to withdraw the
plea after receiving the probation report and learning she was born in Mexico. Neither
claim has merit. Although her plea counsel did not specifically recall this case, he
testified that if his client appeared depressed or under the influence of any substance, it
would be his custom and practice to ask for a continuance. He also testified that, since
the plea in this case went forward that day, he assumed there was no concern in that
regard. Moreover, on the plea form, defendant represented that she was not under the
influence of any medication or suffering from any condition that impacted her ability to
understand what she was doing. We also note that the court did not express any concerns
over her state of sobriety while taking the plea. Defendant’s allegation that her counsel
failed to file a motion to withdraw her plea is not relevant to a claim of counsel’s error at
the time of the plea, or error that damaged her ability to meaningfully understand the
immigration consequences of her plea. (Ogunmowo, supra, 23 Cal.App.5th at p. 75.)
Additionally, we agree with the trial court that defendant’s memory of her case
appears to have been selective and self-serving and rendered her not credible. Defendant
testified that she did not remember if there was a Spanish interpreter there assisting her
with reading the plea form when she signed it. Specifically, she did not remember if the
Spanish interpreter reviewed the plea form with her, or if he read the paragraph regarding
the immigration consequences of the plea. She did not remember initialing the boxes on
21
the plea form or signing it. Defendant claimed she could barely remember the day she
pled guilty. Yet, she remembered that she was not told of the consequences of her
pleading guilty. She remembered she was on medication when she went to court, and
that she was still suffering from depression from her son’s murder that day. She
remembered that when she saw her counsel in the courtroom at the plea hearing, she only
spent “very little time” talking to him. Defendant also remembered that no other
alternatives to pleading guilty were discussed with her.
Furthermore, some of defendant’s testimony was inconsistent with the evidence,
thereby rending her not credible. She testified that, when the police came to her house,
she was not sitting at the kitchen table in front of the rock cocaine. Yet, the police report
showed she was sitting at the table when they arrived. She also testified that she took
care of her autistic son, that it was a 24 hours a day, seven days a week activity for her,
that he was not able to do anything for himself, and that she did not let him go out into
public without her. However, a review report from the Institute for Applied Behavioral
Analysis that was submitted in support of her motion stated that her son was employed at
Del Taco four days a week, and that he was “able to clock in and out independently at
Del Taco.” Another report stated that he lived with his mother, along with two of his
brothers, who were both married and that defendant herself said her son was improving
on his self-care and was able to complete personal grooming, bathing, and fixing fast
meals. The report also stated that “if he goes out on the street he tells his mother where
and when is back [sic], and he is always on time. [He] uses his cell phone to call his
mother throughout [the] day.” The report further stated that his weekly schedule included
22
attending school on Mondays, volunteering at Meals on Wheels, going for walks, going
to the gym, eating out, and going to the library.
To the extent defendant is contending she is entitled to relief due to her own lack
of understanding, we disagree. She claims that her depression and state of mind at the
time of her plea prohibited her from understanding and appreciating the actual
immigration consequences of her plea. Again, however, she represented to the court that
she was not suffering from any condition that impacted her ability to understand what she
was doing. Thus, her self-serving claim is not credible.
2. Defendant has failed to establish prejudice
We recognize that defendant was not required to establish ineffective assistance of
counsel, but only that her counsel’s error was prejudicial and damaged her “ability to
meaningfully understand, defend against, or knowingly accept the actual or potential
adverse immigration consequences” of her plea. (§ 1473.7, subd. (a)(1); see People v.
Camacho (2019) 32 Cal.App.5th 998, 1008-1009.)10 However, even if she showed her
counsel erred by not advising her that deportation would be mandatory, or that she did
not understand the consequences of her plea, defendant has failed to establish that she
was prejudiced. “[S]howing prejudicial error under section 1473.7, subdivision (a)(1)
10 “The California Supreme Court has held . . . 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. [Citation.] Defendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction. . . .” (People v. Ruiz (2020) 49 Cal.App.5th 1061, 1065, citing People v. Patterson (2017) 2 Cal.5th 885, 889.) Thus, although we find no error amounting to ineffective assistance of counsel, we do note the advisement in this case appears erroneous under the Patterson decision. 23
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. 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.) Defendant argues that she would not have taken the plea deal if she knew she
would be deported because of her six children, and particularly because she was her
autistic son’s primary caretaker. Her declaration contains the only direct evidence
presented as to whether she would have taken the plea had she been aware 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 (2021) 69 Cal.App.5th 1063, 1074.)
Defendant stated in her declaration that if she knew she would be deported or
forever banned from coming back into the United States, she would have asked for a
better deal or asked to go to trial. However, she also stated that no one discussed going to
trial, indicating she did not know she could go to trial. Moreover, her declaration is
contradicted by the plea form she initialed indicating she understood she had the right to
a trial. As to her claim that she would have asked for a better deal, the prosecutor who
handled this case testified that under the circumstances of this case, he would not have
been willing to offer any plea that would have allowed her to avoid adverse immigration
consequences.
24
Furthermore, the evidence against defendant was strong. It showed that a
confidential informant bought cocaine from her at her house. Subsequently, the police
executed a search warrant there and found her and two males at the kitchen table
packaging narcotics. Defendant had 11 pieces of rock cocaine directly in front of her and
$433 in cash on her person. She was charged with possession of cocaine base for sale,
which carried a maximum penalty of five years. (Health & Saf. Code, former § 11351.5.)
However, pursuant to the plea agreement, she was only sentenced to 180 days in local
custody and probation. Under these circumstances, it is not likely she would have risked
going to trial, being convicted, and facing a state prison term as well as the same
immigration consequences. Moreover, we observe that defendant said in her declaration
that all she cared about was getting back to her children. At the hearing, she expressly
acknowledged that she would take 180 days in jail plus deportation, rather than spend
three to five years in prison with the same result of being deported so that she would be
out of custody sooner to be with her children.
Defendant mentions the offenses her codefendants were convicted of and asserts
that she has diligently tried to “improve her immigration status” since her plea by filing
other motions. These points are irrelevant and only show she regrets pleading guilty.
She also contends that, had she gone to trial, a reasonable juror could find the prosecution
had not proven she was in possession of the drugs for sale since there were two other
parties present. She further asserts that had she been convicted, it was likely that the
court would have still granted her probation or perhaps given her a lower sentence.
However, these claims are purely speculative.
25
Ultimately, defendant has not shown her plea counsel’s performance in 1995 was
deficient, that prejudicial error damaging the defendant’s ability to meaningfully
understand, defend against, or knowingly accept the actual or potential adverse
immigration consequences of her plea of guilty occurred, or that she was prejudiced. We
conclude the court properly denied the motion to vacate her conviction.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
RAMIREZ P. J.
MENETREZ J.
26
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's motion to vacate her 1995 conviction, finding that she failed to establish that her counsel's performance was deficient under the standards applicable at the time of her plea.
Issues
Whether the trial court erred in denying the defendant's motion to vacate her conviction under Penal Code section 1473.7.
Whether the defendant's plea counsel rendered ineffective assistance by failing to provide specific immigration advice in 1995.
Whether the holding in Padilla v. Kentucky applies retroactively to the defendant's 1995 plea.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Padilla is not applicable here since defendant pled guilty 15 years before the opinion in Padilla was issued.”
“Therefore, defendant’s plea counsel here had no affirmative obligation in 1995 to research and advise defendant of the actual immigration consequences of her plea.”
“We conclude the court properly denied her motion.”