Opinion
F075606
04-03-2020
THE PEOPLE, Plaintiff and Respondent, v. EPIGMENIO MORENO, Defendant and Appellant.
Nuttal Coleman & Drandell, Jim H. Vorhies and Roger T. Nuttal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. PCF283728)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Walter L. Gorelick, Judge. Nuttal Coleman & Drandell, Jim H. Vorhies and Roger T. Nuttal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
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Epigmenio Moreno filed a motion, pursuant to Penal Code section 1473.7, to withdraw his nolo contendere plea and vacate his convictions. The motion was denied by the superior court, which ruling Moreno challenges on appeal. We affirm.
PROCEDURAL HISTORY
On June 3, 2013, a first amended complaint charging Moreno with two felonies and three misdemeanors was filed in the Tulare County Superior Court. The charges at issue were: felony evading a police officer (count 1, Veh. Code, § 2800.2, subd. (a)); felony vandalism (count 2, Pen. Code, § 594, subd. (a)); two counts of misdemeanor resisting or obstructing a peace officer (counts 3 & 4, § 148, subd. (a)(1)), and misdemeanor driving on a license suspended for a prior DUI conviction (count 5, Veh. Code, § 14601.2, subd. (a)).
Subsequent statutory references are to the Penal Code unless otherwise specified.
The following day, Moreno pleaded no contest to one felony (evading a police officer) and two misdemeanors (resisting or obstructing a peace officer and driving on a suspended license). The remaining counts—one count of felony vandalism and one count of misdemeanor resisting or obstructing a peace officer—were dismissed. Moreno was ultimately sentenced to five years of felony probation, subject to various conditions, including serving a jail term of 364 days. On August 22, 2016, Moreno's probation was terminated early and his motion to (1) reduce his felony conviction to a misdemeanor under section 17, subdivision (b), and (2) withdraw his plea pursuant to section 1203.4, was granted.
FACTS
At Moreno's change of plea hearing, the prosecutor recited the factual basis for the plea, which was not disputed by the defense. Specifically, the prosecutor stated:
"On May 28, [2013,] at approximately 5:00 a.m. in the morning, officers attempted to contact the defendant in his vehicle. When they got
out of the [patrol] car, the [defendant's] vehicle accelerated and there was a pursuit with lights and sirens.
"The [defendant's] vehicle traveled too fast and collided with several brick fence posts in a front porch awning and the defendant fled on foot despite the officer's commands for him to stop, and the defendant admitted that he had fled ... [¶ ] ... And there was no license. It was a suspended license."
DISCUSSION
I. Moreno's Motion , Pursuant to Section 1473 .7 , to Vacate his Convictions
Former section 1473.7 was enacted in 2016; it remained effective from January 1, 2017, through December 31, 2018. The statute was amended effective January 1, 2019, during the pendency of this appeal. (Stats. 2018, ch. 825, § 2.)
Former section 1473.7 allowed a defendant like Moreno, who was no longer imprisoned or restrained, to move to vacate convictions entered on a plea of guilty or no contest, based on ineffective assistance of counsel that leads to unexpected immigration consequences. To obtain relief under former section 1473.7, a defendant must establish by a preponderance of the evidence that his conviction is "invalid due to a prejudicial error" that damaged his "ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences" of the plea. (Former § 1473.7, subd. (a)(1).)
On January 27, 2017, Moreno filed a motion to vacate his convictions pursuant to former section 1473.7. The prosecution filed an opposition. After a hearing on March 3, 2017, the court denied the motion. Moreno argues the trial court erroneously denied his motion to vacate his convictions. He argues the court should have granted the motion because his "conviction or sentence is legally invalid due to a prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of [his] plea." We affirm.
Moreno makes certain procedural arguments in his opening brief—we will address these arguments first. Moreno's opening brief also raises claims pursuant to former section 1473.7 (the brief was filed before the effective date of amended section 1473.7). We will address those claims next. After the effective date of the amended statute, Moreno filed supplemental briefs raising additional claims. We will address the claims in his supplemental briefs thereafter.
A. Background
1. Moreno's No Contest Plea and Resulting Convictions
As mentioned, Moreno pleaded no contest to three charges in June 2013, specifically felony evading a police officer, misdemeanor resisting or obstructing a peace officer, and misdemeanor driving on a suspended license.
In connection with entering the plea, Moreno signed an "ADVISEMENT OF RIGHTS, WAIVER, AND PLEA FORM," that related to the driving on a suspended license charge and contained advisements related to driving offenses. The form, however, also advised the defendant that his plea would have immigration consequences. Specifically, the form noted: "DEPORTATION: I understand that if I am not a United States Citizen, a guilty or no contest plea to the charge(s) will have the consequences of my deportation, exclusion from admission to the United States, or denial of immigration or naturalization pursuant to the laws of the United States. Penal Code 1016.5." Moreno initialed this section of the form, signifying that he had read and understood the advisement. (Italics in original.)
Thereafter, at the change of plea hearing, the trial court and Moreno had the following exchange:
"THE COURT: ... Do you believe you have had enough time to speak to your lawyer about this case[,] Mr. Moreno?
"THE DEFENDANT: Yes.
"THE COURT: Did you give him all the information you can think of regarding the charges against you?
"THE DEFENDANT: Yes.
"THE COURT: Are you satisfied with his advice and his services to you?
"THE DEFENDANT: Yes.
"THE COURT: Have you used any drugs or alcohol in the last 24 hours?
"THE DEFENDANT: No.
"THE COURT: Are you on any medication that makes you unable to understand what is happening here today?
"THE DEFENDANT: No.
"THE COURT: Have you been able to understand what your lawyer has spoken with you about today?
"THE DEFENDANT: Yes.
"THE COURT: Have you communicated well with [your lawyer] today?
"THE DEFENDANT: Yes.
"THE COURT: [Defense counsel], have you advised your client of the consequences in this case and have you reviewed with him his rights as well?
"[DEFENSE COUNSEL]: Yes.
[¶ ] ... [¶ ]
"THE COURT: [Mr. Moreno,] [i]f you are not a citizen of the United States and you enter a plea of guilty or no contest, it will result in your deportation, denial of naturalization, re-entry and admission from the United States. [¶ ] Do you understand that?
"THE DEFENDANT: Yes.
[¶ ] ... [¶ ]
"THE COURT: Do you have any other questions for your attorney before we continue?
"THE DEFENDANT: No." (Italics added.)
The court also confirmed Moreno had read, understood, signed, and initialed the advisement of rights and change of plea form related to the driving with a suspended license offense, addressed above. In addition, the court confirmed the form was explained to Moreno in Spanish. After Moreno entered his plea, the court stated: "The Court will accept your plea; find that you knowingly, intelligently and voluntarily waived your constitutional rights; that you understand the nature of the crimes charged and all the consequences of your plea; and that your plea is freely and voluntarily made."
2. Motion , Hearing , and Ruling Pursuant to Section 1473 .7
As noted, on January 27, 2017, Moreno filed a motion seeking to vacate his no contest plea, under former section 1473.7, on grounds of "prejudicial error damaging [his] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of his Nolo contendere plea." (Former § 1473.7, subd. (a)(1).) The motion stated Moreno was an "undocumented individual," who "ha[d] been placed in deportation proceedings." The motion further asserted: "[A]s a result of [the] conviction and sentence in this matter, the Department of Homeland Security/Immigration and Customs Enforcement is now seeking the immigration judge to pretermit (dismiss) Defendant's form of relief of removal and remove Defendant from the United States." The motion added: "Had the Defendant's defense attorney ... not fail[ed] to defend against immigration consequences of a plea by attempting to plea for an immigration-safe alternative disposition and sentence or had investigated and accurately advised Defendant about the immigration consequences [of] the Defendant's Nolo contendere plea and imposed sentence, Defendant [w]ould not have pleaded no contest." The motion concluded that Moreno's "conviction and/or sentence are legally invalid and should be vacated."
The motion papers clarified that Moreno is a citizen of Mexico. The motion papers further noted: "In December 2013, after Defendant's release from the county jail, Defendant was detained by Immigration and Customs Enforcement (ICE) agents. A Notice to Appear (NTA) was served to Defendant alleging that Defendant was subject to deportation because he was not properly admitted or paroled into the U.S."
On March 3, 2017, the superior court conducted a hearing on Moreno's motion to vacate his convictions. At the hearing, the court observed: "I've reviewed the points and authorities that both sides have submitted. It's a lot of stuff but I didn't have anything else exciting to read last night so I read through I think all of it, including - I thought it was sort of informative that the brief that the federal attorney submitted also. I can't say I read every case in there, I read through it basically." The court continued: "Now, the one thing I will tell you right now is, I didn't see a declaration of the attorney that you're complaining about here in the file by either side. And by the way, sometimes the attorneys are not available. This particular attorney I saw today and I can tell you he's still available, you know, and still works in the Public Defender's Office. [¶ ] So you know - you know, we don't know, from what I see in your documents here what he ... advised the person or what he didn't advise the person, you know." (Italics added.)
The court added:
"[Moreover], I don't think you attacked the [change of plea] judge's admonitions in this particular case that I saw because actually - and I looked at what he said in regard to the whole plea here because the transcript was attached here and I read the transcript. And I might add, I think that [the] judge was fairly new to doing felonies at the time, so maybe that's why he took such a good plea, but he was very careful and pretty well going through everything that one would do on a plea, you know. And I would say, if you had the calendar that I do over here, it's very difficult. If I had to do everything that was in that transcript there I'd be in a little bit of trouble here I think. Which doesn't mean it [should] be excused if you're not doing it right, I try to do it right.
"But I think, you know, he basically went through the admonitions. He went through the rights that the person was giving up. He asked the person, are you on any medication, have you had enough time to talk to your attorney, have you discussed things with your attorney and the answer kept being yes, yes, yes. And I don't know what else could have been done other than, I suppose, we could get into, you know, what immigration advice did you get, you know. There's no - I mean, frankly, little time we
have a little bit on these attorneys to do their job, you know. [¶ ] That's why, if there was a declaration by the attorney, I didn't tell the person about their immigration rights or something, then we'd have something, you know, maybe to argue about."
The court explained that a declaration from Moreno's defense counsel at the time of the plea, entered into the record by either the People or Moreno, would have helped shed light on any immigration advisements provided by counsel. The court added that a declaration from counsel would also have revealed what efforts, if any, defense counsel made to secure an immigration-neutral plea. The court made additional comments in this context:
"The charges. That concerns me somewhat too. And, you know, the question is, you know, the case law sort of beats around the bush about how you're supposed to evaluate that. How are we supposed to really backtrack and evaluate that kind of thing since we weren't there, we only have the transcript. And again, we don't have a declaration from the attorney.
"I mean, I can tell you, having done this work for years, that the charges that you have in this case, evading an officer and resisting, delaying or obstructing a peace officer. Hasn't changed much over the years as far as the position of the DA's office. You know ... any attorney is going to have a hard sell with the DA's office in getting those charges dropped or dismissed or changed or - I'm not saying that it can't be done but I'm just saying it's a hard sell. And back then it was a hard sell, it's a hard sell today as well."
The court thereafter permitted defense counsel to "put on the record what you want." Defense counsel made the following comments:
"I think in a perfect world I would have liked to have a declaration from his defense attorney and we simply don't. And so, Your Honor, is going to rule based on what's in front of you and I understand that.
"We submitted a declaration from my client so you certainly know my client's position and what happened from his standpoint. But I think the opposition that was submitted by the People and including the transcript, it's hard to argue that Mr. Moreno wasn't advised by the Court and I recognize that as well, Your Honor.
"At this point we are submitting it on the moving papers. My hope was that Your Honor would recognize that there certainly has been
prejudice to my client in terms of the negative effect, I guess. Whether that prejudice was caused by something lacking of the defense attorney, that's - that's I think the heart of the issue in this case. And without any other evidence, and I certainly don't have that today, I can't provide that. I'm only providing what's been provided to you by my client and what's on the record. [¶ ] So with those comments, Your Honor, I'll submit."The People, for their part, submitted on their papers. The court then denied the motion.
3. Alleged Procedural Errors Committed by Court in Ruling on Motion
The clerk's transcript in this matter contains an incomplete copy of Moreno's underlying motion to vacate his convictions and plea. The clerk's transcript also contains a fax coversheet that shows the motion was submitted for filing via a fax sent to the Porterville Superior Court. The fax cover sheet notes the faxed submission contained 58 pages, including the cover sheet. Moreno contends in his opening brief: "The body of the motion indicates there were seven exhibits attached, 'A' through 'G' ... However, the motion in the record does not contain any exhibits after 'A.' Instead, starting after the cover page for Exhibit 'B,' the record contains [the] fax coversheet, and 3 copies of the same incomplete motion."
Moreno infers, based on the "body of the motion," that Exhibit "E" contained his own declaration in support of his motion, and another exhibit contained "documentation from the US Department of Homeland Security." In light of the incomplete motion included in the clerk's transcript, Moreno asserts the superior court "ruled on an incomplete motion," thereby denying his rights "to be heard in a meaningful manner" and "to be judged on the evidence presented in court." The People, in response, argue that appellate relief is precluded because Moreno did not perfect the record on appeal, in that he "failed to undertake the necessary steps to reconstruct the missing exhibits, or otherwise obtain a settled statement regarding what documents were actually before the Superior Court."
After the first round of briefing was complete, Moreno was able to obtain, from counsel who represented Moreno in the underlying motion proceeding, a complete copy of the motion and supporting exhibits (i.e., Exhibits A through G) that were originally faxed to the superior court for filing. Moreno then submitted the complete set of motion papers (including Exhibits A through G) to this court, along with an affidavit from Moreno's motion counsel attesting to the authenticity of the documents, and requested that the documents be incorporated into the record. We hereby grant that request pursuant to California Appellate Rules, rule 8.252(c)(3).
Rule 8.252(c)(1) provides: "A party may move that the reviewing court take evidence. Rule 8.252(c)(3) adds: "For documentary evidence, a party may offer an electronic copy, or if filed in paper form, the original, a certified copy, or a photocopy. The court may admit the document in evidence without a hearing.
The complete set of motion papers consists of the notice of motion, motion, memorandum of law, and exhibits A through G. Exhibit A to the motion consists of trial court records related to Moreno's plea; Exhibit B consists of a notice to appear in removal proceedings initiated against Moreno by the United States Department of Homeland Security; Exhibit C consists of an "Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents," filed by Moreno in his removal proceeding; Exhibit D consists of a brief submitted by the United States Department of Homeland Security to the immigration judge presiding over Moreno's removal proceeding (the brief is entitled, "Motion to Pretermit Respondent's Application for Cancellation of Removal for Non-Permanent Residents"); Exhibit E consists of Moreno's declaration in support of the motion to vacate; Exhibit F consists of the birth certificates of Moreno's U.S.-born children; and Exhibit G consists of medical records of Moreno's son (born in 2012).
A review of the complete set of motion papers makes clear that the superior court considered the entire set of papers, including all the exhibits, when it ruled on the motion. Several of these exhibits were addressed during the hearing on Moreno's motion to vacate his conviction. For example, Moreno's motion counsel discussed Moreno's declaration (Exhibit E) at the hearing. In addition, the court commented on the brief submitted by the Department of Homeland Security to the immigration judge in Moreno's removal proceeding (Exhibit D). The court also referred to the medical records concerning Moreno's young son contained in the very last exhibit attached to the motion (Exhibit G). This record clarifies that the court considered the complete set of motion papers (including Exhibits A through G) when it made its ruling. Moreno's unsupported claim that the motion court likely viewed an incomplete copy of the motion papers has no merit.
Moreno next takes issue with the motion judge's reference, during the motion hearing, to a "'brief that the federal attorney submitted.'" Moreno argues that in ruling on his motion to vacate, the court considered an extra-record brief. However, the court's reference to a "'brief that the federal attorney submitted,'" was clearly directed at Exhibit D to Moreno's motion to vacate his convictions. As mentioned above, Exhibit D consists of a brief submitted by the United States Department of Homeland Security to the immigration judge in Moreno's removal proceeding (the brief is entitled, "Motion to Pretermit Respondent's Application for Cancellation of Removal for Non-Permanent Residents"). Since the brief in question is an exhibit to Moreno's motion itself, it was properly before the court and the court correctly considered it.
4. Ineffective Assistance of Counsel under Former Section 1473.7
We next turn to Moreno's substantive challenge to the court's ruling. As mentioned, former section 1473.7 permits a person like Moreno, who is no longer imprisoned or restrained, to move to vacate the convictions entered on his no contest plea, based on ineffective assistance of counsel that led to adverse immigration consequences. Moreno must establish, by a preponderance of the evidence, that his conviction is "invalid due to [a] prejudicial error" that damaged his "ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences" of the plea. (§ 1473.7, subd. (a)(1).) He can establish "prejudicial error" by meeting the Strickland criteria for ineffective assistance. (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland); see People v. Olvera (2018) 24 Cal.App.5th 1112, 1116 (Olvera).)
In his motion to vacate, Moreno argued that his trial counsel was ineffective in connection with his change of plea, which was based on a plea bargain with the prosecution. Citing Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla) and People v. Bautista (2004) 115 Cal.App.4th 229 (Bautista), Moreno argued counsel did not investigate and accurately advise him of the immigration consequences of his plea, and nor did counsel attempt to negotiate an "immigration-safe" plea. Moreno contended counsel's errors were prejudicial in that Moreno would not have entered the plea had he known the immigration consequences thereof. Moreno asserted that counsel's ineffective assistance constituted prejudicial error that damaged his ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of his plea, thereby rendering his convictions invalid under section 1473.7. Moreno now argues that the motion court erroneously denied his motion to vacate.
We independently review the order denying the motion to vacate as it "'presents a mixed question of fact and law.'" (Olvera, supra, 24 Cal.App.5th at p. 1116; People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76 (Ogunmowo).) "We defer to the trial court's factual determinations if supported by substantial evidence, but exercise our independent judgment to decide whether the facts demonstrate deficient performance and resulting prejudice." (Olvera, supra, at p. 1116.) "Since 2001, it has been settled in California that ineffective assistance claims may be viable despite the collateral nature of immigration consequences and despite statutory warnings that the plea 'may' have such consequences." (Ibid.)
To prevail, Moreno must demonstrate that (1) counsel's representation fell below an objective standard of reasonableness, as judged by "prevailing professional norms" (Strickland, supra, 466 U.S. at p. 688), and (2) "but for counsel's unprofessional errors, the result of the proceeding would have been different" (id. at p. 694; Padilla, supra, 559 U.S. at p. 366); that is, "'a reasonable probability exists that, but for counsel's incompetence, he would not have pled guilty and would have insisted, instead, on proceeding to trial.'" (Olvera, supra, 24 Cal.App.5th at p. 1117). "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" (Ogunmowo, supra, 23 Cal.App.5th at p. 78.) In assessing prejudice under the reasonable probability standard, "[t]he probability of obtaining a more favorable result at trial is one factor to consider ... but it is not necessarily the determinative factor." (Ibid.) "[I]t could be reasonably probable that a defendant 'would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a "Hail Mary" at trial,' where 'avoiding deportation was the determinative factor [for the defendant].'" (Ibid.) However, "'[c]ourts 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.'" (Ibid.) An ineffective assistance of counsel claim is governed by Sixth Amendment obligations as they existed at the time of the defendant's plea. (Olvera, supra, 24 Cal.App.5th at p. 1115.)
In Padilla, the United States Supreme Court held that criminal defense counsel's Sixth Amendment obligations include providing "advice regarding deportation," when a guilty or no contest plea would subject the defendant to automatic deportation. (Padilla, supra, 559 U.S. at p. 366.) Prior to Padilla, there was no federal, Sixth Amendment obligation on the part of defense counsel to affirmatively advise a defendant of the immigration consequences of a conviction. (See Chaidez v. United States (2013) 568 U.S. 342, 353.) Indeed, most courts had determined that no such duty existed at all. (Ibid.) Courts which had recognized ineffective assistance of counsel claims with respect to immigration advice limited their holdings to misadvice by counsel, declining to address the issue of whether neglecting to affirmatively advise defendants of immigration consequences could also result in a finding of ineffective assistance of counsel. (Padilla, supra, at pp. 369-370; see In re Resendiz (2001) 25 Cal.4th 230, 235 ["affirmative misadvice regarding immigration consequences may, depending on the circumstances of the particular case, constitute ineffective assistance of counsel].) Padilla had the effect of "'break[ing] new ground'" and "'impos[ing] a new obligation'" with respect to requiring counsel to advise defendants of immigration issues, effectively redefining such issues as direct, rather than collateral, consequences of pleas. (Chaidez v. United States, supra, 568 U.S. at pp. 352-353; see People v. Mejia (2019) 36 Cal.App.5th 859, 867-868 [discussing Padilla in historical perspective].)
In re Resendiz was overruled by Padilla to the extent it limited ineffective assistance of counsel claims to affirmative misadvice.
Padilla, supra, 559 U.S. 356, acknowledged that federal immigration law is often complex and that, in some cases, the likelihood of deportation as a consequence of a conviction is neither clear nor certain. (Id. at p. 369.) In those cases, the court held, the most the Sixth Amendment may require of defense counsel concerning immigration consequences is a warning that a criminal conviction "'may' have adverse immigration consequences." (People v. Patterson (2017) 2 Cal.5th 885, 897-898 (Patterson), quoting Padilla, supra, 559 U.S. at pp. 368-369; see In re Hernandez (2019) 33 Cal.App.5th 530, 544 (Hernandez).)
However, when, as was the case in Padilla, federal immigration law specifies in "succinct, clear, and explicit" terms that a conviction will result in deportation, the criminal defense attorney's duty to "give correct advice is equally clear" (Padilla, supra, 559 U.S. at pp. 368-369) and "a criminal defense attorney must accurately advise his or her client of that consequence before the client enters a guilty plea." (Patterson, supra, 2 Cal.5th at p. 898.) Applying Padilla, supra, 559 U.S. 356, the California Supreme Court in Patterson stated that "[t]he generic advisement under [Penal Code] section 1016.5 is not designed, nor does it operate, as a substitute for such advice." (Patterson, supra, 2 Cal.5th at p. 898.)
Section 1016.5, subdivision (a), requires the trial court to administer, on the record, an advisement to the defendant before accepting a plea of guilty or nolo contendere, as follows: "If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States."
The defendant in Padilla "face[d] deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky." (Padilla, supra, 559 U.S. at p. 359.) Counsel had not only failed to advise him of this consequence prior to his entering the plea, but also told him that he "'"did not have to worry about immigration status since he had been in the country so long."'" (Ibid.) "Padilla relied on his counsel's erroneous advice when he pleaded guilty to the drug charges that made his deportation virtually mandatory." (Ibid.) "He allege[d] that he would have insisted on going to trial if he had not received incorrect advice from his attorney." (Ibid.)
Padilla concluded: "In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla's conviction. See 8 U.S.C. § 1227(a)(2)(B)(i) ('Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance ..., other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable')." (Padilla, supra, 559 U.S. at p. 368.) Padilla explained: "Padilla's counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, Padilla's counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla'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 pp. 368-369.)
The words "deportation" and "removal" are interchangeable in the immigration context. (See Padilla, supra, 559 U.S. at p. 364, fn. 6.)
Here, Moreno simply asserts, in conclusory fashion, that his trial counsel was required to inform him that the felony evading conviction to which he pled, specifically would make him "subject to deportation for an aggravated felony under 8 U.S.C. § 1101(a)(43)(F); 8 U.S.C. § 1227(a)(2)(A)(iii)." However, the federal statutes cited by Moreno address broad concepts and general classifications of crimes, without any reference to the offense of evading an officer or California Vehicle Code section 2800.2. Title 8 United States Code section 1227(a)(2)(A)(iii), cited by Moreno, states that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." Next, title 8 United States Code section 1101(a)(43)(F), cited by Moreno, provides that "[t]he term 'aggravated felony'" includes "a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." As for title 18 United States Code section 16, which defines a "crime of violence," it provides that "[t]he term 'crime of violence' means—(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." These federal statutes, which address broad classifications of crimes, do not alone establish that a conviction for felony evading under California Vehicle Code section 2800.2, subdivision (a), triggers automatic deportation. Stated differently, these statutes do not amount to "succinct, clear, and explicit" notice that the California felony evading offense is an aggravated felony under federal immigration law. (Padilla, supra, 559 U.S. at pp. 368-369.)
Indeed, in Penuliar v. Mukasey (9th Cir. 2008) 528 F.3d 603, 607-609 (Penuliar), the Ninth Circuit Court of Appeals specifically held that "a conviction for evading an officer in violation of California Vehicle Code [section] 2800.2 does not categorically qualify as a 'crime of violence within the meaning of 18 U.S.C. § 16'" (id. at p. 610) and, in turn, is not necessarily an aggravated felony. The Penuliar court further found, even upon applying the modified categorical approach and examining specific documents in the plea record, that the defendant there could not be shown to have been convicted of the elements of the generically defined crime of violence delineated in title 18 section 16 of the United States Code. (Penuliar, supra, at pp. 610-611.) Penuliar concluded that the defendant's conviction for felony evading under California Vehicle Code section 2800.2, subdivision (a), therefore was not an "aggravated felony" for purposes of immigration law. (Penuliar, supra, at p. 614.) Subsequently, in November 2014, several years after Penuliar was decided and well over a year after Moreno entered his nolo contendere plea to felony evading, another Ninth Circuit case, United States v. Martinez (9th Cir. 2014) 771 F.3d 672 (Martinez), suggested that Penuliar may no longer be good law in light of intervening United States Supreme Court authority analyzing an evading offense in the context of the federal Armed Career Criminal Act (ACCA).
The categorical approach to determining whether an offense is an aggravated felony is applied as follows: "'[Courts] look to the statute under which the person was convicted and compare its elements to the relevant definition of an aggravated felony in 8 U.S.C. § 1101(a)(43).'" (Penuliar, supra, 528 F.3d at p. 609.) "'Under this "categorical approach," an offense qualifies as an aggravated felony "if and only if the full range of conduct covered by the [criminal statute] falls within the meaning of that term."'" (Ibid.)
Courts apply the modified categorical approach "when the statute of conviction reaches both conduct that would constitute an aggravated felony and conduct that would not." (Penuliar, supra, 528 F.3d at p. 609.) "Under this approach, [courts] conduct 'a limited examination of documents in the record of conviction to determine if there is sufficient evidence to conclude that a defendant was convicted of the elements of the generically defined crime.'" (Ibid.) "'[Courts] do not, however, look to the particular facts underlying the conviction.'" (Ibid.)
Martinez is also an ACCA case, not an immigration case and, in any event, post-dates Moreno's plea.
In short, Moreno has not shown that, at the time of his plea, federal law explicitly, succinctly, and clearly specified that California felony evading was an aggravated felony and that conviction thereof would trigger mandatory deportation. On the contrary, it appears that, at the time of Moreno's plea, federal law specified that California felony evading did not categorically qualify as an aggravated felony and deportable crime, and further indicated that it would rarely qualify as an aggravated felony under the modified categorical approach as well. In this regard, it should also be noted that the removal proceedings against Moreno were initiated on account of his undocumented status, rather than his felony evading conviction.
As mentioned, Padilla explained that counsel's duty to give correct advice is clear "when the deportation consequence is truly clear." (Padilla, supra, 559 U.S. at p. 369.) Padilla further explained that, "[w]hen the law is not succinct and straightforward," "a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." (Padilla, supra, 559 U.S. at p. 369 (italics added); Patterson, supra, 2 Cal.5th at pp. 897-898.) Moreno has not cited any authority establishing that, at the time of his plea, a conviction for California felony evading necessarily triggered presumptively mandatory deportation. Therefore, there is no basis to conclude that the immigration consequence of Moreno's no contest plea to felony evading was "truly clear." (Padilla, supra, at p. 369.) It follows that, at the time of Moreno's plea, trial counsel was required, under the Sixth Amendment, only to warn Moreno that his no contest plea "'may' have adverse immigration consequences." (Patterson, supra, 2 Cal.5th at pp. 897-898.) Moreno has therefore not established that trial counsel was required, in the first instance, to provide specific immigration advice rather than a generic warning.
Again, it bears mention that the "Notice to Appear," issued by the Department of Homeland Security to Moreno, to inform him of the initiation of removal proceedings against him, indicates that removal proceedings were initiated on account of his undocumented status rather than his conviction for felony evading.
Under these circumstances, Moreno's argument that counsel was ineffective in not investigating and accurately advising him of the immigration consequences of his plea, is defeated by the unequivocal advisement given by the court at the change of plea hearing, to the effect: "[Mr. Moreno,] [i]f you are not a citizen of the United States and you enter a plea of guilty or no contest, it will result in your deportation, denial of naturalization, re-entry and admission from the United States." The court asked Moreno whether he understood the advisement, and Moreno answered in the affirmative. In connection with entering the plea, Moreno also signed an "Advisement of Rights, Waiver, and Plea Form," related to the driving on a suspended license charge. This form also clarified that Moreno would be deported as a consequence of his plea. Moreno initialed this section of the form, signifying that he had read and understood the advisement. The court also confirmed Moreno had read, understood, signed, and initialed this form. In addition, the court confirmed the form was explained to Moreno in Spanish.
Thus, even assuming counsel did not fulfill his duty, under Padilla, to advise Moreno that his plea may have adverse immigration consequences, the possibility of prejudice is precluded. Since the court explicitly advised Moreno that his plea would result in deportation, and the "Advisement of Rights" form Moreno signed and initialed similarly clarified that his plea would result in deportation, Moreno cannot show that any putative failure by counsel to advise him of the mere possibility that his plea would result in adverse immigration consequences was prejudicial. In turn, he is not entitled to relief under section 1437.7 on grounds of ineffective assistance of counsel.
Moreno also contends that counsel's performance was deficient when he did not investigate an immigration-neutral disposition. In 2004, a California court had concluded that the failure to investigate an immigration-neutral alternative disposition in plea bargaining could constitute deficient performance. (Bautista, supra, 115 Cal.App.4th at p. 238.) But Moreno has not made a sufficient showing to prevail under this theory of deficient performance.
Unlike the petitioner in Bautista, Moreno does not identify any available immigration-neutral disposition. In Bautista, counsel advised the defendant he "'would be deported'" as a result of a plea of guilty to possessing marijuana for sale, but counsel did not attempt to plead upward to an available immigration-neutral offense. (Bautista, supra, 115 Cal.App.4th at p. 238.) An expert in immigration law declared that Bautista could have "plead[ed] up" to an offense with greater sentencing exposure but less severe immigration consequences, which the expert believed the prosecutor would have accepted. Prosecutors had agreed to the disposition in similar cases on which the expert had consulted. (Id. at p. 240.) The Bautista court concluded the claim was viable and issued an order to show cause for an evidentiary hearing in the trial court. (Id. at pp. 241-243.)
Here, Moreno asserts counsel did not attempt to negotiate a plea to an immigration-neutral offense to which he might have pled. However, he does not identify any immigration-neutral disposition to which the prosecutor was reasonably likely to agree. Moreno has therefore not established, under Bautista, that counsel rendered deficient performance. (See Olvera, supra, 24 Cal.App.5th at p. 1118 [the defendant did not establish deficient performance of defense counsel under Bautista, because he "[did] not identify any immigration-neutral disposition to which the prosecutor was reasonably likely to agree"].)
In sum, Moreno has not established ineffective assistance of counsel in connection with his change of plea and is not entitled to relief on that basis. The motion court, in turn, did not err when it denied his motion to vacate. In light of our independent determination, we need not address Moreno's claims that the motion court applied the wrong standards in ruling on the motion to vacate.
5. 2019 Amendment to Section 1473 .7
In 2018, the Legislature passed Assembly Bill No. 2867 (2017-2018 Reg. Sess.), amending section 1473.7, which became effective on January 1, 2019, while this appeal was pending. (Stats. 2018, ch. 825, § 2.) Section 1473.7, subdivision (a)(1), as amended, provides in relevant part: "A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence ... [¶ ] ... [that] 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. A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (Italics added.)
In amending section 1473.7, the Legislature declared that its intent was "to provide clarification to the courts regarding Section 1473.7." (Stats. 2018, ch. 825, § 1(b).) The Legislature's declaration also noted that the "measure shall be interpreted in the interests of justice and consistent with the findings and declarations made in Section 1016.2 of the Penal Code." (Stats. 2018, ch. 825, § 1(c).) The Legislature's declaration further stated: "The State of California has an interest in ensuring that a person prosecuted in state court does not suffer penalties or adverse consequences as a result of a legally invalid conviction." (Stats. 2018, ch. 825, § 1(d).)
Section 1016.2 sets forth the Legislature's findings and declarations with respect to the federal high court's groundbreaking decision in Padilla, supra, 559 U.S. 356. Section 1016.2 concludes with the following statement: "It is the intent of the Legislature to codify Padilla v. Kentucky and related California case law and to encourage the growth of such case law in furtherance of justice and the findings and declarations of this section." (§ 1016.2, subd. (h).)
Both parties submitted supplemental briefs in light of the amendment to section 1437.7, with the People candidly acknowledging that the amended statute retroactively applies to this case since it "potentially lessen[s] the burden on a petitioner seeking relief."
People v. Camacho (2019) 32 Cal.App.5th 998 (Camacho) interpreted section 1473.7 as recently amended. In Camacho, the superior court denied the defendant's motion pursuant to section 1473.7 on grounds that he had failed to establish a claim of ineffective assistance of counsel as required for relief under former section 1473.7. The Court of Appeal reversed, holding that while a defendant could formerly obtain relief on the basis only of an error by counsel, the amended statute permitted relief to be granted on the basis of "[the] defendant's own error in ... not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States." (Camacho, supra, at p. 1009 (italics added).)
As for prejudice, Camacho held: "Because the errors need not amount to a claim of ineffective assistance of counsel, it follows that courts are not limited to the Strickland test of prejudice, ... [a] reasonable probability of a different outcome in the original proceedings absent the error." (Camacho, supra, 32 Cal.App.5th at p. 1009.) Rather, Camacho concluded that a "defendant may show prejudice by 'convinc[ing] the court [that he] would have chosen to lose the benefits of the plea bargain despite the possibility or probability deportation would nonetheless follow.'" (Id. at p. 1010.) The court relied, in part, on the United States Supreme Court's recent holding in Lee v. United States (2017) 137 S.Ct. 1958, 1967 (Lee).
Another court to interpret section 1473.7 as recently amended is Mejia, supra, 36 Cal.App.5th 859. Mejia held: "[W]e agree with the Camacho court's analysis that the focus of the inquiry in a section 1473.7 motion is on the 'defendant's own error in ... not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.'" (Mejia, supra, at p. 871, quoting Camacho, supra, 32 Cal.App.5th at p. 1009.) Mejia further held: "We also agree with the Camacho court as to the prejudice component of the amended statute. That is, a 'prejudicial error' occurs under section 1473.7 when there is a reasonable probability that the person would not have pleaded guilty—and would have risked going to trial (even if only to figuratively throw a 'Hail Mary')—had the person known that the guilty plea would result in mandatory and dire immigration consequences." (Mejia, supra, at p. 871; see Lee, supra, 137 S.Ct. at p. 1967 ["Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation."].)
People v. DeJesus (2019) 37 Cal.App.5th 1124 (DeJesus) also interpreted amended section 1437.7 consistent with Camacho and Mejia. Dejesus held: "To obtain relief [under section 1437.7], [the defendant] must show by a preponderance of the evidence that the plea was legally invalid due to a prejudicial error. The statute defines error as one that damaged his ability to meaningfully defend against the actual or potential adverse immigration consequences of his plea. To show prejudice, [the defendant] must establish that he would not have entered the plea if he had known it would render him deportable. In assessing the latter element, courts should look to 'contemporaneous evidence to substantiate a defendant's expressed preferences.'" (DeJesus, supra, at p. 1134.)
In supplemental briefing, Moreno argues that, just like the defendant in Camacho, Moreno "erred by not knowing '[t]hat his plea would subject him to mandatory deportation and permanent exclusion from the United States.'" Moreno further argues: "Also like the defendant in Camacho, this error was based on [Moreno's] reliance on erroneous information provided to him by trial counsel." However, as explained above, Moreno has not shown that, at the time of his plea, federal law succinctly, clearly, and explicitly specified that a California felony evading conviction would result in automatic deportation. Accordingly, trial counsel was only required to inform Moreno that his plea may result in adverse immigration consequences. Even assuming counsel erred and failed to so advise, the court advised Moreno that his plea would result in his deportation. The court also inquired whether Moreno understood the advisement and whether Moreno had any questions for defense counsel. Moreno confirmed he understood the advisement and that he had no questions for defense counsel. Under these circumstances, Moreno has not shown that a "prejudicial error" occurred that damaged his "ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of" his nolo contendere plea. (§ 1473.7, subd. (a)(1).) In turn, Moreno has not shown that his underlying convictions are legally invalid. We therefore conclude the motion court properly denied his motion to vacate his convictions. In light of our independent determination, we need not address Moreno's claim that the motion court applied an incorrect standard in ruling on the motion to vacate.
6. Ineffective Assistance of Motion Counsel
In supplemental briefing, Moreno argues, for the first time, that his attorney for purposes of the motion to vacate, under section 1473.7, provided ineffective assistance of counsel. He contends counsel was ineffective (1) "for failing to have [Moreno's] change of plea attorney present" at the motion hearing; and (2) for failing "to have [Moreno] testify at the hearing so as to more fully establish [Moreno's] ties to the community." Moreno further contends motion counsel was ineffective in failing to argue "[Moreno's] lack of understanding of the immigration consequences" of the plea as well as "prejudice to [Moreno] from the plea."
For purposes of our analysis of these claims we will assume without deciding that Moreno was entitled to competent counsel in section 1473.7 motion proceedings. We reject Moreno's contentions that counsel was ineffective in his representation of Moreno in the motion proceedings.
As discussed above, it appears that, at the time of Moreno's plea, the California offense of felony evading was not necessarily a deportable offense. Moreover, given the requirements of section 1473.7, the actions of counsel that Moreno is challenging could, in light of extra-record factors, well represent sound tactical choices. Therefore, we may not second guess these choices based only on the limited record before us. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [an appellate court should not "brand a defense attorney incompetent unless it can be truly confident all the relevant facts have been developed"]; People v. Frye (1998) 18 Cal.4th 894, 982 ["'Lack of success does not reflect incompetence of counsel.'"], overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Fosselman (1983) 33 Cal.3d 572, 581 [reversal on the ground of inadequate counsel is warranted "only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission"].) In turn, Moreno's claim that motion counsel was ineffective, fails.
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
PEÑA, J.