Opinion
C098323
04-12-2024
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO FERNANDO BRIBIESCA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. MFE08008678)
WISEMAN, J. [*]
Defendant Eduardo Fernando Bribiesca appeals the denial of his motion to vacate his 2008 conviction of transportation of methamphetamine for sale, which permanently excludes him from the United States. Defendant contends the trial court erred in denying his motion because he did not meaningfully understand the immigration consequences of his plea and would not have entered the plea if he had known it would result in his exclusion from the United States. We conclude that, while defendant was not adequately advised of the immigration consequences of his plea, he has not shown that he was prejudiced as a result. Consequently, we will affirm the order denying defendant's motion.
FACTUAL AND PROCEDURAL BACKGROUND
I
Arrest and Plea Agreement
In 2008, defendant was arrested and charged with transportation of methamphetamine for sale (Health &Saf. Code, § 11379, subd. (a)), sale or transportation of cocaine (Health &Saf. Code, § 11352), and sale of marijuana (Health &Saf. Code, § 11360, subd. (a)). Defendant pled no contest to transportation of methamphetamine for sale, and in exchange the trial court sentenced him to the low term of two years and dismissed the other two counts.
At sentencing, defendant's counsel informed him that the prosecutor offered a two-year prison term if defendant pled no contest to transportation of methamphetamine for sale. Defendant requested the trial court either agree to or consider a plea offer granting "probation," consisting of a one-year sentence to be served in "local custody." Defense counsel said he had previously spoken to defendant, the prosecutor, and the trial court regarding this request. Counsel went on to explain that the trial court had previously been "extremely clear" that it would not consider defendant's proposed plea.
The trial court then reviewed the charges and told defendant, "If you go to trial and are found not guilty, obviously you would receive no custody. If you go to trial and are found guilty, especially of count 2, you can count on at least four years in prison. If you plead guilty, you are not going to receive probation. Nobody in this Court gets probation when they are dealing in four ounces of cocaine." The trial court then said to defendant, "[y]ou are not going to receive [probation] upon a guilty plea. So your choices are to accept the agreement or go to trial." The trial court offered a one-week continuance to defendant so that he could further consult with counsel. Defendant immediately responded, "I'll take the deal."
Counsel and defendant then completed the plea form in court with an interpreter present. Defendant initialed the box corresponding to paragraph 12 of the plea form, which states: "Immigration Consequences - I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty." Defendant signed the plea form indicating that he "read and initialed each of the paragraphs [of the plea form] and discussed them with [his] attorney." Counsel signed the plea form indicating that he reviewed the plea form with defendant, explained each of defendant's rights, and answered all of defendant's questions related to those rights and the plea. The interpreter also signed the plea form indicating that he translated the plea agreement and that defendant had stated that he understood the contents of the plea form.
After defendant had fully executed the plea form, the trial court asked defendant if he had enough time to completely discuss the case and the plea form with his counsel through the interpreter. Defendant responded, "Yes." During the plea colloquy, the trial court asked defendant if he entered into the plea freely and voluntarily. Defendant responded, "Yes." trThe trial court informed defendant of the maximum punishment and explained the terms of the plea agreement, which defendant confirmed he understood. The trial court then asked defendant, "[Do] [y]ou also understand a plea of no contest to this charge could result in your deportation, exclusion from admission to this country, denial of naturalization, or amnesty." Defendant responded, "Yes."
Accordingly, the trial court found that defendant freely and voluntarily entered a plea of no contest and understood all other consequences related to the plea, including the immigration consequences. The trial court sentenced defendant to two years on the transportation of methamphetamine for sale count and dismissed the other two counts. Defendant was subsequently deported in 2010 and has resided in Mexico since that time.
II
Motion to Vacate Plea
In 2023, defendant moved the trial court to vacate his plea pursuant to section 1473.7 of the Penal Code, which allows an out-of-custody defendant to file a motion to vacate a conviction on the basis that he did not meaningfully understand or knowingly accept the adverse immigration consequences of his plea. Defendant's motion argued that if he had been properly advised about the immigration consequences of the plea, he would not have accepted the plea. Defendant argued he would have directed his counsel to seek an immigration-neutral disposition or gone to trial because, as a result of his conviction, defendant is not eligible for immigration benefits and is inadmissible from the United States for life.
Undesignated statutory references are to the Penal Code.
In support of his motion, defendant submitted a declaration stating he was born in Mexico and entered the United States in 2006 when he was 21. Upon arriving in the United States, defendant lived with his brother, attended a local church, worked three jobs, provided childcare for his brother, and contributed financially to help cover family expenses, including medical costs related to his mother's pancreatic cancer treatment.
Following his 2008 arrest and 2009 no contest plea, an immigration judge ordered his removal from the United States in 2010, and defendant has resided in Mexico since that time. Defendant's declaration and letters of support from family members claim that he has strong ties to the United States because his siblings, wife, and children reside in the United States. Defendant married his wife in Mexico in 2014 after being released from custody. Defendant's wife and two children are United States citizens.
In support of his motion to vacate, defendant declared that prior to entering his plea he was not advised by his counsel regarding the potential negative immigration consequences of doing so. Defendant claimed that the Spanish interpreter incorrectly translated basic English phrases on several occasions, which made defendant worry that he was not being "relayed correct information." Prior to filling out the plea form and after accepting the prosecution's plea offer, defendant stated his counsel never offered a consultation with an immigration attorney, did not inquire about defendant's immigration status, and did not tell defendant that a plea to the transportation of methamphetamine for sale charge would have negative immigration consequences. Defendant further declared that he did not have knowledge of the legal system and placed complete trust in counsel, and if he had known of the immigration consequences of his plea, he would have insisted that counsel obtain an alternative charge or taken his chances at trial. Defendant did not provide a declaration from his trial counsel.
Following his conviction and deportation, defendant retained immigration counsel to consult about his eligibility for immigration benefits. Immigration counsel also provided a declaration in support of defendant's motion to vacate his sentence. In his declaration, immigration counsel stated that it was not until defendant retained counsel that he was aware of his inadmissibility and ineligibility for immigration benefits, and if defendant had consulted with him, immigration counsel would have advised against accepting the plea agreement because of the adverse immigration consequences. Immigration counsel further asserted that he would have advised defendant to "enter an alternative plea to prevent permanent inadmissibility based on this conviction."
At the hearing on defendant's motion to vacate his conviction, the trial court stated that defendant's factual basis for the motion to vacate was in his declaration. The trial court found that defendant executed the plea form and indicated that he understood the consequences of his plea by initialing paragraph 12 of the plea form. Defense counsel conceded that the trial court properly provided defendant with immigration status admonishments pursuant to section 1016.5. Counsel argued, however, that prior to the plea hearing, defendant did not knowingly accept the immigration consequences of his plea. Defense counsel further argued, notwithstanding the section 1016.5 admonitions from the trial court or the fully executed plea form, defendant must be advised of his immigration consequences prior to accepting the no contest plea. The prosecution argued that the record is "devoid of anything that shows he didn't understand . . . the immigration consequences" of his plea at the time he entered into it. The trial court agreed with the prosecution, found defendant understood the immigration consequences when he entered into the plea, and denied the motion.
DISCUSSION
Defendant claims that he pled no contest to the charge of transportation of methamphetamine for sale without being adequately advised of the immigration consequences of his plea. As a result, defendant contends he would not have entered into the plea agreement if he had been properly advised of the negative immigration consequences and that he suffered prejudicial error. Although we agree with defendant that he was not adequately advised of the immigration consequences of his plea, we conclude that defendant's section 1473.7 claim fails to show prejudice.
Section 1473.7 motions are subject to independent review. (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." (In re George T. (2004) 33 Cal.4th 620, 634.) When the facts derive entirely from a cold record comprised entirely of written declarations and other documents, as here, the reviewing court is in the same position as the trial court to interpret the documents. (Vivar, at p. 528)
Advisement of Immigration Consequences
To prevail on a section 1473.7 motion, defendant must demonstrate that his conviction is "legally invalid due to prejudicial error damaging [his] 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).) To establish error under section 1473.7, "defendant must first show that he did not meaningfully understand the immigration consequences of his plea." (People v. Espinoza (2023) 14 Cal.5th 311, 319.) Defendant's own subjective error, demonstrated in his declaration, is sufficient to show defendant did not understand the immigration consequences of the plea deal. (People v. Alatorre (2021) 70 Cal.App.5th 747, 769; People v. Camacho (2019) 32 Cal.App.5th 998, 1009; People v. Mejia (2019) 36 Cal.App.5th 859, 871.) Even a plea form indicating "I must expect my plea of . . . no contest will result in my deportation" or that defendant "will" be deported, does not substitute for the advice of counsel. (People v. Manzanilla (2022) 80 Cal.App.5th 891, 906.)
The record demonstrates the prosecution informed defendant of its plea offer before the sentencing hearing; defendant offered his own alternative plea at the hearing, which was rejected; defendant then orally accepted the prosecution's plea offer; he completed the plea form with his counsel and an interpreter in court; and the trial court provided defendant with the section 1016.5 advisements. Aside from the completed plea form, there is no evidence that counsel specifically advised defendant of the potential negative immigration consequences of entering into the plea agreement.
Defense counsel had a duty to provide defendant specific advice that he would be subject to mandatory deportation as a result of entering the no contest plea. Here, the record does not demonstrate that this advisement occurred. (People v. Manzanilla, supra, 80 Cal.App.5th at p. 906.) Moreover, defendant's postplea retention of immigration counsel to advise him on his current eligibility for immigration benefits further demonstrates he misunderstood the plea's consequence. (People v. Curiel (2023) 92 Cal.App.5th 1160, 1177.) The trial court's advisement under section 1016.5 and the fully executed plea form alone are inadequate to satisfy section 1473.7. (People v. Bravo (2021) 69 Cal.App.5th 1063, 10721073 (Bravo); People v. Manzanilla, supra, 80 Cal.App.5th at p. 906; People v. Lopez (2021) 66 Cal.App.5th 561, 577.) Thus, defendant met his burden under section 1473.7 to demonstrate he did not meaningfully understand the immigration consequences of his plea. However, defendant must also demonstrate that he suffered prejudice.
Prejudice
To demonstrate prejudice, defendant must show that it is reasonably probable he would not have pled no contest if properly advised. (Vivar, supra, 11 Cal.5th at pp. 528-529.) When determining whether defendant has shown a reasonable probability that he would not have entered the plea if properly advised, we consider the totality of the circumstances, which requires a case-by-case examination of the record. (People v. Espinoza, supra, 14 Cal.5th at p. 325, citing Vivar, at pp. 529-530.) "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, at pp. 529-530.) "[D]efendant'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 [are also relevant factors]." (Espinoza, supra, 14 Cal.5th at p. 320.) We look to the contemporaneous evidence, at or near the time defendant entered into the plea agreement, to substantiate his preferences. (People v. Mejia, supra, 36 Cal.App.5th at p. 872; Vivar, at p. 530.)
Personal attachments to the United States, such as family, can evidence a defendant's desire to vacate his previous plea due to a lack of understanding immigration consequences; however, this case is factually distinguishable from Vivar and Espinoza, the two cases relied on by defendant, . In Vivar, our Supreme Court held the defendant's substantial ties to the United States, such as moving to the United State at the age of six, attending schools, forming a family, and remaining in the United States for 40 years, were important factors in support of granting relief under section 1473.7. (Vivar, supra, 11 Cal.5th at p. 530.) The defendant in Espinoza similarly had lived in the United States for 23 years, his wife and children were United States citizens, and he was the financial provider for his family. (People v. Espinoza, supra, 14 Cal.5th at p. 322.) While defendant has some ties to the United States, this case is more factually analogous to Bravo.
In Bravo, the defendant came to the United States at the age of 18; was in the country for four and one-half years at the time he pled guilty; had a child and live-in girlfriend in the United States; and was the sole financial provider for them. (Bravo, supra, 69 Cal.App.5th at pp. 1075-1076.) The court in Bravo concluded the defendant's ties to the United States were "substantially different" than the defendant in Vivar and affirmed the judgment. (Id. at pp. 1076., 1078) Here, defendant came to the United States at the age of 21, lived with and financially contributed to his immediate and extended family, but was only in the country for two years before pleading no contest. Defendant's ties to the United States are even more tenuous than the defendant in Bravo, and much less substantial than those of the defendants in Vivar and Espinoza. We also reject defendant's argument that his wife and children, who live in the United States, were a priority to defendant when plea bargaining his case. While we recognize the difficulty of being separated from his wife and children, they could not have been a priority during the plea bargaining process because, at the time of the plea, defendant was not married and his children had not yet been born.
The contemporaneous evidence shows defendant's priority in entering the plea agreement was to obtain a shorter sentence, not to avoid negative immigration consequences. The plain terms of defendant's rejected plea offer, which he made at his sentencing hearing, did not contain any immigration-neutral language. Further, there is nothing in the record demonstrating defendant had any intention that his plea offer address his immigration status. To the contrary, the record shows defendant first became aware of the negative immigration consequences of his plea when he was deported to Mexico in 2010, not in 2022 when he hired immigration counsel as stated in his declaration.
Unlike the defendant in Vivar who sent "uncounseled letters" to the court at or near the time of his plea objecting to his immigration hold, defendant does not provide any contemporaneous evidence from 2010 or earlier corroborating that he realized the ramifications of his mistaken belief that his plea would not impact his immigration status. (Vivar, supra, 11 Cal.5th at pp. 530-531.) Prior to hiring immigration counsel approximately 12 years after he was deported, there is nothing in the record suggesting that defendant considered his immigration status to be a priority when negotiating his plea. Without any contemporaneous evidence of defendant's state of mind at or near the time of his conviction related to his claimed desire to remain in the United States, we simply cannot conclude avoiding deportation was a priority to defendant. (Id. at pp. 529-530; People v. Mejia, supra, 36 Cal.App.5th at p. 872.)
Defendant also argues that an immigration-neutral plea may have been available because he did not have an extensive criminal record. Based on the record before us, we conclude it is not reasonably probable that defendant would have obtained a more favorable outcome if he had rejected the prosecution's plea offer because the prosecution was only willing to offer defendant a plea with adverse immigration consequences. (Bravo, supra, 69 Cal.App.5th at p. 1077.) Prior to the plea colloquy, defense counsel stated that he had previously discussed defendant's alternative plea offer (plea to drug charge with probation for one-year, local jail time) with the trial court and the prosecutor prior to sentencing, which obviously was rejected by both. Defendant did not have any reason to believe an immigration-neutral negotiated disposition was possible because the trial court told defendant "your choices are to accept the [offered plea] agreement or go to trial." Defendant's declaration confirmed he understood his limited options.
All three charges in this case were offenses related to controlled substances. Regardless of whether defendant had chosen to go to trial, a plea or conviction on any of the charges would have had adverse immigration consequences for defendant. (8 U.S.C. § 1182(a)(2)(A)(i)(II).) Defendant offers no contemporaneous evidence indicating it was possible for him to receive an immigration-neutral plea under the circumstances. Neither does immigration counsel's declaration, which does not propose or suggest any alternative immigration-neutral disposition that defendant could have possibly obtained. Without any evidence to show that an immigration-neutral disposition was available, let alone offered, we cannot conclude that it is reasonably probable that, even if he had been properly advised, defendant would have rejected the plea offer with the expectation that he might negotiate an immigration-neutral plea or go to trial. (Bravo, supra, 69 Cal.App.5th at p. 1077.)
Standing alone, defendant's self-serving postconviction and postdeportation declaration that he would not have accepted a plea deal if he was properly advised on the immigration consequences is insufficient to make a showing of prejudice. (Bravo, supra, 69 Cal.App.5th at p. 1074.) We conclude, based on the totality of the circumstances, that the trial court did not err in denying defendant's motion to vacate his plea.
DISPOSITION
The order denying defendant's section 1473.7 motion is affirmed.
We concur: Earl, P. J., Krause, J.
[*] Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.