Opinion
G055648
04-07-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALBERTO ROJAS, Defendant and Appellant.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Matthews, Seth Friedman, Adrian R. Contreras, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 01NF1363) OPINION Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded. Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Matthews, Seth Friedman, Adrian R. Contreras, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Jose Alberto Rojas filed a motion under Penal Code section 1473.7 to vacate his 2001 drug conviction based on a guilty plea. (All further statutory references are to the Penal Code unless otherwise noted.) Section 1473.7 allows a person no longer in custody to bring a motion to vacate a conviction which "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[.]" (§ 1473.7, subd. (a)(1).) The court must grant the motion to vacate "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).)
In his motion for section 1473.7 relief, Rojas contended his conviction was invalid due to his counsel's ineffective assistance in failing to investigate and accurately advise him of the immigration consequences of the guilty plea or to negotiate a safer, immigration-neutral plea. Rojas also asserted the conviction was invalid because he did not understand the plea's immigration consequences at the time he pleaded guilty.
The trial court denied the motion to vacate, concluding Rojas failed to prove either prong of his ineffective assistance of counsel claim under the well-known "Strickland test": Rojas did not demonstrate his counsel's performance was deficient under "prevailing professional norms" or caused him prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland).) We issued an opinion affirming the trial court's order. We concluded Rojas failed to demonstrate ineffective assistance of counsel and, therefore, did not establish prejudicial error mandating relief under section 1473.7. Neither we nor the trial court addressed Rojas's claim the conviction was invalid because of his own failure to grasp the immigration consequences of his guilty plea.
We issued our opinion on February 28, 2019, one day after the Second District published People v. Camacho (2019) 32 Cal.App.5th 998 (Camacho). Rojas filed a petition for rehearing citing Camacho and arguing this new opinion upended a fundamental assumption of all section 1473.7 cases that came before, including our opinion in this matter. Specifically, Camacho held an amendment to section 1473.7, effective January 1, 2019, clarified the statute does not require proof of ineffective assistance of counsel (IAC) to vacate a conviction. Rather, a "defendant's own error in . . . not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States" constituted prejudicial error warranting relief under section 1473.7. (Camacho, supra, 32 Cal.App.5th at p. 1009.)
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 to indicate the language added by amendment.)
Because the amendment to section 1473.7 was a clarification of existing law, it applied to nonfinal judgments, including our decision in this case. (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922 ["A statute that merely clarifies, rather than changes, existing law is properly applied to transactions predating its enactment"].) We vacated our original opinion, granted the petition for rehearing, and invited the parties to address the effect of the Camacho decision on Rojas's case.
After the parties submitted their letter briefs, another panel of this court issued People v. Mejia (2019) 36 Cal.App.5th 859 (Mejia). The Mejia decision agreed with Camacho's interpretation of section 1473.7 as amended, and articulated a two-pronged test for prejudicial error mandating relief under the statute. (Mejia, supra, 36 Cal.App.5th at p. 862.) Essentially, under the Mejia test a defendant is entitled to relief from a conviction based on a guilty plea if he proves (1) he did not "meaningfully understand" the adverse immigration consequences of the guilty plea, and (2) it is reasonably probable he would have chosen to defend against the charges had he understood those consequences. (Mejia, supra, 36 Cal.App.5th at p. 862.) The parties also addressed the effect of Mejia on this case.
We invited another round of letter briefs to address an unusual wrinkle in the Camacho/Mejia prejudicial error analysis. That wrinkle is whether Rojas's choice to admit rather than defend against a probation violation resulted from his failure to "meaningfully understand" the immigration consequences of his guilty plea. As explained below, on the unusual facts of this case, it was that choice which triggered the adverse immigration consequences of his guilty plea. We reverse the trial court's order denying Rojas's motion to vacate the conviction, and remand for further proceedings in the trial court to examine the peculiar question of prejudicial error presented here.
I
FACTUAL AND PROCEDURAL BACKGROUND
Rojas came to the United States from Mexico in 1992 at the age of 10. He attended elementary school, middle school, and high school here, and became a lawful permanent resident when he was 18. A year later, in 2001, Rojas was arrested and charged with possessing methamphetamine for sale. (Health & Saf. Code, § 11378.)
On the advice of his defense counsel, Rojas accepted a plea agreement under which he pleaded guilty to the reduced charge of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), received a suspended sentence of 180 days in jail, and was placed on three years' formal probation with terms and conditions, including completion of a drug treatment program. Rojas accepted the deal with the understanding that, if he successfully completed the drug court program (§ 1210 et seq.), the prosecution would dismiss the charges entirely. Rojas failed to complete the drug treatment program, however, and served 180 days in jail.
In 2015, Department of Homeland Security (DHS) placed Rojas in removal proceedings based on his 2001 drug conviction. The DHS notice cited section 237, subdivision (a)(2)(B)(i), of the Immigration and Nationality Act allowing removal from the United States of an immigrant convicted of "any law or regulation of a State . . . relating to a controlled substance," other than simple possession of marijuana. A. The Motion to Vacate the Conviction
On September 13, 2017, Rojas filed a section 1473.7 motion to vacate his 2001 conviction and withdraw his guilty plea. Rojas argued the "conviction is unlawful in that he was denied the effective assistance of counsel" when he entered his guilty plea. According to the moving papers, "[d]efendant's prior counsel violated the duty to investigate and accurately advise the defendant about the specific immigration consequences of the plea" and "failed to defend against [those] immigration consequences . . . by attempting to plea bargain for an immigration-safe alternative disposition, and . . . defendant failed to meaningfully understand the immigration consequences of a conviction."
In the motion, Rojas contended he pleaded guilty without knowing the immigration consequences of the plea, including mandatory deportation, inability to apply for relief from deportation, and permanent exclusion from the United States. He asserted he never would have accepted the plea offer had he known of these immigration consequences and, instead, "would have insisted on going to trial or would have accepted more jail time if it meant he could plead to a different charge that would avoid his deportation." Rojas pointed to numerous corroborating facts in the record, including that at the time of his plea in 2001, "[he] had 2 young U.S. citizen children who depended on him for emotional and financial support." Additionally, "his parents, siblings, aunt, uncles and cousins" all lived in the United States and, consequently, he had "no significant ties to his home country[.]"
According to Rojas's supporting declaration, his defense counsel "never did any investigation about the immigration consequences of my plea nor did he even talk to me about them." "My attorney never advised me there was even a possibility that DHS would deport me as a result of my plea in this case." Rojas further stated, "Although the court may have advised me that there were possible immigration consequences of my plea, I really did not understand. I did not know that pleading to this controlled substance offense would eliminate any relief in immigration court."
"I always thought that nothing more would happen to me after I was in criminal court on this case. I thought if anything would possibly happen that I would be eligible for some kind of relief in immigration court since I was a lawful permanent resident, I have lived in the United States since 1992 and my whole family, including my parents, siblings, and children, live here in the U.S."
Rojas further stated in his declaration he is the "main financial provider" for his six minor children who are all American citizens, and his removal based on the conviction "would be devastating to me and my family[.]" "Staying in this country with my family is the most important thing to me. My home is and always has been the United States of America."
Rojas also submitted a declaration from his postconviction relief counsel, who is also his immigration attorney. The attorney described the severe immigration consequences of Rojas's drug conviction under the Immigration and Nationality Act. The attorney stated he would have recommended against the proposed plea deal, if consulted, "because of the terrible [immigration] consequences[.]" The attorney further stated, based on his experience, no immigrant defendant would "be willing to take an offer or plea bargain that looked attractive on the surface if he knew it meant he would never be able to live and be with his family again in his adopted country." B. Trial Court Order Denying the Motion to Vacate
The trial court denied the motion to vacate, finding Rojas failed to establish either prong of an IAC claim: Rojas neither demonstrated his counsel's performance was deficient nor that counsel's purported deficiency affected the outcome.
On the issue of "substandard performance," the trial court ruled Rojas made "no showing of any failure to advise or of any other error" on the part of his attorney. The court rejected Rojas's assertion his attorney failed to advise him of the immigration consequences of the plea, noting both Rojas and plea counsel signed the Tahl form under penalty of perjury attesting to the fact counsel "advised defendant of all of the consequences of his plea. There is no support for the present assertion that [defense counsel] never discussed the immigration consequences aside from defendant's belated, self-serving statements."
The trial court also rejected Rojas's contention plea counsel provided ineffective assistance by not attempting to negotiate an alternative, "'immigration safe plea[,]'" concluding "[s]uch an attempt in this case would have almost certainly been futile, as the People's case was strong." The court cited a police report documenting the jailhouse discovery, after Rojas's arrest on two bench warrants, that Rojas "had something in his shoe. He pulled a baggie of methamphetamine out of his shoe. The baggie also contained four smaller baggies, each containing roughly equal amounts of methamphetamine. The net weight of the methamphetamine was 1.7 grams." "Given that the officers actually observed defendant possessing methamphetamine split into baggies of equal amounts" — clear indicia of intent to sell — and Rojas was allowed to plead "to straight possession" with no jail time and the possibility of dismissal in exchange for completing a drug program, the court concluded "there is no reason to believe the District Attorney would have agreed to any sort of plea to a different but related offense."
Finally, the trial court ruled Rojas "failed to demonstrate prejudice." The court pointed to the fact "the People's case was strong," yet Rojas "received a very favorable plea bargain[.]" "His maximum exposure" on the charge of possession for sale "was three years, and he received a lower charge and a drug program . . . ." Moreover, the court noted Rojas "submits nothing to establish that in 2001 he was concerned about his immigration status. Having provided no corroboration for his claim that he would not have accepted the proposed disposition had he been advised of the immigration consequences, defendant has failed to satisfy his burden of showing prejudice by the preponderance of the evidence."
II
DISCUSSION
Our original opinion analyzed Rojas's claims without benefit of the Camacho decision, which clarified ineffective assistance of counsel is not required for vacating a conviction under section 1473.7. (Camacho, supra, 32 Cal.App.5th at p. 1009.) We affirmed the trial court's order denying Rojas's motion to vacate based on our conclusion Rojas failed to prove his claim of IAC under Strickland, supra, 466 U.S. 668. Our opinion did not address Rojas's additional claim he failed to understand the dire immigration consequences of his guilty plea because, before Camacho, defendant's own "error" in that regard was beside the point.
With Camacho and the subsequent Mejia decision, a defendant's failure to understand the immigration consequences of pleading guilty became a crucial factor in a section 1473.7 motion. The Mejia court put it plainly: "[T]he 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, 36 Cal.App.5th at p. 871, original italics, quoting Camacho, supra, 32 Cal.App.5th at p. 1009.)
Camacho and Mejia also agreed "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 throw a figurative "'Hail Mary'") — had the person known the guilty plea would result in mandatory deportation. (See Lee [v. United States (2017)] 582 U.S. ___ ['Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation'].)" (Mejia, supra, 36 Cal.App.5th at p. 871.)
The Mejia court stated the test for prejudicial error as follows: "[T]o establish a 'prejudicial error' under section 1473.7, a person need only show by a preponderance of the evidence: (1) he did not 'meaningfully understand' or 'knowingly accept' the actual or potential adverse immigration consequences of the plea; and (2) had he understood the consequences, it is reasonably probable he would have instead attempted to 'defend against' the charges." (Mejia, supra, 36 Cal.App.5th at p. 862.)
We review the trial court's order denying the motion to vacate the conviction as a mixed question of fact and law. (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76 (Ogunmowo).) Under this standard, "[w]e accord deference to the trial court's factual determinations if supported by substantial evidence in the record, but exercise our independent judgment in deciding whether the facts demonstrate" prejudicial error under the statute. (Ibid.)
Turning to the facts of this case, we find the record demonstrates Rojas did not "meaningfully understand" or "knowingly accept" the immigration consequences of his guilty plea. Rojas submitted a declaration stating his attorney never talked with him about the immigration consequences of the plea and never advised him "there was even a possibility" he could be deported as a result of the plea. Rojas acknowledged the trial court advised him there could be possible immigration consequences, but, "I really did not understand. I did not know that pleading to this controlled substance offense would eliminate any relief in immigration court." Rojas stated he had "always thought" his status as a lawful permanent resident protected him by making him "eligible for some kind of relief in immigration court[.]"
Dismissing Rojas's assertions as "belated, self-serving statements," the trial court concluded Rojas made "no showing" his counsel failed to advise him of the immigration consequences of his guilty plea. Based solely on the Tahl form Rojas and his plea counsel signed, the court concluded Rojas understood deportation was a mandatory consequence of the plea. The Attorney General likewise disputes Rojas's claimed ignorance of the plea's immigration consequences by pointing to the Tahl form and to the minute order from the plea hearing reflecting the immigration advisements the court read to Rojas.
We are unpersuaded the general advisement of immigration consequences Rojas initialed on the Tahl form and heard the trial court read at the plea hearing ensured Rojas "meaningfully under[stood]" mandatory deportation was a consequence of his guilty plea. Case law recognizes a defendant may fail to grasp a general advisement about immigration consequences applies to his specific situation, especially where, as here, the defendant is a lawful permanent resident. (See Ogunmowo, supra, 23 Cal.App.5th at p. 81 [court rejected assertion defendant's silence in response to court's "standard" immigration consequences warning proved defendant understood deportation was consequence of plea where advisement "was not addressing Ogunmowo's particular status as a lawful permanent resident"]; see also Camacho, supra, 32 Cal.App.5th at p. 1011, fn. 8 [despite warning plea "'will result' . . . in adverse immigration consequences, defendant presented sufficient evidence of his lack of understanding such that the court's advisement cannot be taken as irrebuttable proof that defendant likely would have entered his plea notwithstanding those consequences"].)
In Mejia, supra, 36 Cal.App.5th 859, the defendant received the standard immigration consequences advisement but, nonetheless, insisted in a declaration and in hearing testimony his counsel "'never explained to me that I would be imminently deportable if I accepted the charges,'" "never discussed the possible immigration consequences" of the guilty plea, and never explained "a drug sales crime is considered an aggravated felony under federal law, which requires deportation." (Id. at pp. 863, 865.) Based on these assertions, the reviewing court concluded Mejia's "undisputed testimony . . . plainly established his own 'error' within the meaning of section 1473.7, subdivision (a)" and satisfied his burden to prove "he did not 'meaningfully understand' or 'knowingly accept' the mandatory deportation consequences when he pleaded guilty[.]" (Mejia, supra, 36 Cal.App.5th at p. 872.)
Rojas's factual assertions in his declaration mirror those of the defendant in Mejia. Like the court in Mejia, we find these undisputed assertions sufficient to establish Rojas's "error" under the statute. Consequently, we conclude Rojas met his burden of proving he did not "meaningfully understand" and "knowingly accept" the immigration consequences of his guilty plea.
Although Rojas satisfied the "error" prong of Mejia's prejudicial error test, meeting the "prejudice" prong of the test is a steeper challenge. Similar to the defendants' evidentiary showing in both Camacho, supra, 32 Cal.App.5th 998, and Mejia, supra, 36 Cal.App.5th 859, the undisputed evidence Rojas presented concerning his personal circumstances at the time of his plea corroborated his contention he would not have pleaded guilty had he known the consequence was mandatory deportation. Specifically, Rojas had deep ties to the United States; he arrived as a child and attended elementary, junior high, and high school here. He was a lawful permanent resident and his entire immediate and extended family all lived here. Perhaps most significantly, when Rojas pleaded guilty, he was the father of two young children, both United States citizens.
In both Camacho and Mejia, the reviewing court concluded evidence of the defendant's personal circumstances at the time of the guilty plea was "compelling" proof the defendant would not have pleaded guilty had he understood the immigration consequences of the plea. (Camacho, supra, 32 Cal.App.5th at pp. 1011-1012 [Camacho arrived in the United States at age two, attended school here, and at the time of arrest had a job and United States citizen wife and child]; Mejia, supra, 36 Cal.App.5th at pp. 864, 873-873 [Mejia arrived at 14 to be with his mother "'and the rest of my family," when he pleaded guilty at 22, he had a United States citizen wife and child].)
Another fact, however, undermines his contention he would have rejected the plea deal had he known of its immigration consequences. As the Attorney General points out in his supplemental letter brief, Rojas obtained a "highly favorable" disposition of the "possession for sale" charge, despite strong evidence of guilt. Facing a three-year prison term and mandatory deportation if convicted of possessing methamphetamine for sale (§ 11378), the deal allowed Rojas to plead guilty to the reduced charge of simple possession; he received a suspended sentence and probation with terms and conditions which included a drug treatment program. "[I]f [Rojas] had successfully completed his probation and drug court requirements, he would have been entitled to have his conviction set aside and the information or complaint dismissed [pursuant to] Penal Code section 1210.1." Consequently, the Attorney General asserts, "the plea gave [Rojas] a chance at an immigration-safe disposition."
The Attorney General explains this contention as follows: "Although generally that conviction would have remained a valid ground for deportation under federal immigration law because, for immigration purposes, a person generally 'continues to stand convicted of an offense notwithstanding a later expungement,' (see Ramirez-Castro v. INS (9th Cir. 2002) 287 F.3d 1172, 1174 [discussing expungement Penal Code § 1203.4]), appellant could have qualified for an exception. At the time appellant entered into the plea there was an exception where if a petitioner satisfied the requirements of the Federal First Offender Act ('FFOA'), 18 U.S.C. § 3607, then the expungement of the petitioner's conviction under state law would eliminate the immigration consequences of the offense. (See Lujan-Armendariz v. INS (9th Cir. 2000) 222 F.3d 728, 749.) That exception was later overruled by Nunez-Reyes v. Holder (9th Cir. 2011) 646 F.3d 684, but because Nunez-Reyes applies only prospectively, appellant arguably would be eligible for relief under the exception set forth in Lujan-Armendariz. (See Lopez v. Sessions (9th Cir. 2018) 901 F.3d 1071, 1075.)"
In other words, the plea deal gave Rojas the opportunity to avoid both prison and deportation. Given these facts, it seems inconceivable Rojas would have rejected the deal had he understood its immigration consequences because those consequences were not dire when he entered the plea. A later development in Rojas's case, however, leads us to consider another factor in this prejudice analysis: It is at least possible Rojas's failure to understand the immigration consequences of his guilty plea contributed to his decision to admit he violated probation, a decision that triggered the plea's mandatory deportation consequence.
The trial court minutes in the record show Rojas admitted a probation violation, which led to his dismissal from the drug court program. That admission meant Rojas lost the opportunity to earn the immigration-neutral promise of the plea deal: expungement of the conviction pursuant to the FFOA, supra, 18 U.S.C. § 3607 (see infra, p. 12, fn. 3). Without that expungement, the guilty plea had the consequence of mandatory deportation.
The record does not indicate whether Rojas had a defense to the probation violation charge or why he chose to admit it. It is certainly possible that, had Rojas known mandatory deportation would be the consequence of his failure to complete the drug program, he would have refused to admit the probation violation and defended against the charge. Alternatively, he might have opted to withdraw from the drug court program, withdraw his guilty plea, and defend against the drug charges at trial, as the trial court offered in the probation violation proceedings. (See Lee v. U.S., supra, 582 U.S. ___ [defendant facing "dire" consequence of deportation might reject "any plea leading to deportation . . . in favor of throwing a 'Hail Mary' at trial"].)
Remand is necessary to allow Rojas the opportunity to file a new section 1473.7 petition to set aside his conviction based on his own error in not knowing his guilty plea would subject him to mandatory deportation should he violate probation. In ruling on the new section 1473.7 petition, the trial court should conduct an evidentiary hearing to determine, based on evidence offered by the parties, whether it is reasonably probable Rojas would not have admitted the probation violation had he understood it would trigger the immigration consequence of his guilty plea: mandatory deportation. If the court answers that question in the affirmative, the court must return Rojas to the position he was in before admitting the probation violation: Rojas must be allowed the opportunity to accept the trial court's offer to withdraw his earlier guilty plea and defend against the drug charges.
Our second order inviting supplemental briefing asked the parties to address, inter alia, the appropriate remedy should the trial court find, upon remand, it is reasonably probable Rojas would not have admitted the probation violation had he understood the immigration consequences of his guilty plea.
Rojas's counsel argued, "[T]he remedy should be to reverse the probation revocation and order the Superior Court to allow Rojas to apply for expungement under section 1201.1, nunc pro tunc to the day his probation was finally terminated, 06142005." The Attorney General took a different tack, arguing the purpose of the remand should be "to allow the trial court to reconsider the [original section 1473.7] motion under the new standard set forth under section 1473.7, as amended in 2019, or to allow Rojas to file a new motion under section 1473.7, seeking to set aside or withdraw his admission of the probation violation." We adopt the Attorney General's latter suggestion in the somewhat modified version explained above.
III
DISPOSITION
The order denying the motion to vacate the conviction is reversed. The matter is remanded to the superior court for further proceedings consistent with this opinion.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. GOETHALS, J.