Filed 1/9/20 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

EDMUNDO LOPEZ,

Defendant and Appellant.

F077205

(Super. Ct. No. SC063889A)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Kern County. Michael G. Bush, Judge.

Sanger Swysen & Dunkle, and Stephen K. Dunkle, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, David Andrew Eldrigde, Amanda D. Cary and Cavan M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Edmundo Lopez pled no contest in 1995 to one felony count of violating Penal Code section 422, criminal threats. Lopez was placed on formal probation, with a condition that he serve one year in jail. In 2017, over 20 years later, Lopez moved to withdraw his plea pursuant to section 1473.7. The trial court denied the motion.

Lopez appeals the denial, contending defense counsel rendered ineffective assistance of counsel by failing to advise him of immigration consequences and failing to negotiate an immigration safe plea. In supplemental briefing, Lopez asserts he need not establish ineffective assistance of counsel to obtain relief, only that there was error that was prejudicial to him.

We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Lopez was on probation for willful infliction of corporal injury on his spouse when he made a criminal threat to track her down and kill her. When officers accompanied his wife to their apartment to collect her belongings, Lopez repeatedly threatened to kill his wife if she left; the threats were made in the presence of officers. When he was arrested, Lopez told officers, “I did mean it, if you don’t take me to jail, I’m going to kill her.”

On August 8, 1995, Lopez was charged with a felony violation of section 422. At the time this charge was filed, Lopez had been convicted of two prior offenses, including a violation of section 273.5, subdivision (a), willful infliction of corporal injury on a spouse, for which he was on probation.

At a hearing on August 18, 1995, there was a discussion between counsel and the trial court to the effect that Lopez had thought the prosecution offered a plea deal consisting of felony probation, subject to serving 120 days in jail, in exchange for a plea to the section 422 offense. Both the prosecution and defense counsel denied communicating such an offer to Lopez. The trial court asked Lopez if he had anything further to add regarding his earlier request for “a different lawyer.” Lopez responded, “No.” The trial court declined to relieve defense counsel.

At the same hearing, defense counsel informed the trial court that “the defendant said he did not wish to continue with this case any further and wanted to enter a plea of no contest to the [section] 422, accepting the one year max, against my recommendation.” The trial court inquired of Lopez, “Is that what you want to do?” Lopez responded, “Yes.”

The trial court proceeded to inform Lopez of his constitutional rights and accepted a waiver of those rights. Lopez was informed that if he accepted the current plea offer, he would be sentenced to formal, felony probation, subject to serving up to one year in jail and if he violated probation, he could serve up to three years in prison. Lopez acknowledged he understood.

When the trial court asked for a stipulation regarding the factual basis for the plea, defense counsel refused to so stipulate. The trial court found a factual basis for the plea based upon “a review of the reports in the file.” Before accepting Lopez’s plea, the trial court stated: “[T]he Court understands that you would be willing to plead guilty or nolo contendere to the charge against you in the felony case, a violation of Section 422 of the Penal Code, making so-called terrorist threats, on the condition that you receive no more than a year in jail as a condition of felony probation.” Lopez affirmed that he understood and wanted to proceed.

Finally, before accepting Lopez’s plea, the trial court gave an advisement on immigration consequences:

“[D]o you understand that if you are not a citizen, you are hereby advised that conviction of the offense to 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 trial court inquired if Lopez understood the immigration consequences advisement and he responded, “Yes.”

The trial court then accepted Lopez’s no contest plea to a felony charge of violating section 422. The trial court also found Lopez to be in violation of the previously imposed probation and revoked and reinstated probation, subject to serving 60 days in jail to run concurrently with the felony term.

Thereafter, on March 10, 2015, almost 20 years after his conviction, Lopez filed a motion to vacate the section 422 conviction pursuant to section 1385, or to amend the judgment to a conviction for section 136.1, subdivision (b), or alternatively, for a writ of habeas corpus. Accompanying the motion was a lengthy declaration from Lopez’s current counsel, Richard Rivera, and a memorandum of points and authorities. Numerous exhibits were attached, including a transcript of the August 18, 1995 hearing.

The People filed opposition to the motion on March 24, 2015. Lopez filed a reply to the opposition on May 4, 2015. A hearing on the motion was held on May 7, 2015. All relief requested was denied.

On November 16, 2017, approximately 22 years after his conviction, Lopez filed a motion pursuant to section 1473.7 to vacate the section 422 conviction, the denial of which is the subject of this appeal. Accompanying the section 1473.7 motion was a declaration of Lopez’s counsel, Rivera, and points and authorities. In addition, Lopez filed a declaration in support of the motion. In his declaration, Lopez acknowledges his prior conviction for violating section 422, and states that his communications with his attorney in 1995 were through an interpreter because his English was limited.

Lopez also states in his declaration that his defense attorney did not discuss immigration consequences with him before he entered the plea and he would not have entered the plea if he had understood the actual immigration consequences of his plea. He also states that he became aware of the actual immigration consequences of his plea in 2014, when he was told by his immigration attorney that he would not be able to obtain a “green card” and was subject to deportation.

Nowhere in the motion, declaration of Rivera, or declaration of Lopez, does it state that defense counsel from 1995 was contacted and asked about the 1995 case or to provide a declaration.

A hearing on the section 1473.7 motion was held on February 7, 2018. Lopez did not attend the hearing; his counsel represented that he had no valid identification and therefore could not travel but was not in custody of immigration authorities or any other authority. The People objected to the motion proceeding based on Lopez’s declaration, without having the ability to cross-examine Lopez.

Counsel stated Lopez was seeking to have the People agree to amend the section 422 conviction to be a conviction under section 136.1, subdivision (b)(1); or vacate the conviction pursuant to section 1473.7; or for the court to exercise its discretion pursuant to section 1385 to dismiss the section 422 conviction.

The trial court responded, “I don’t know that I can find good cause for him [Lopez] not to be here.” The trial court also noted that Lopez’s defense attorney from 1995 was now retired, but still residing in the area and apparently had not been subpoenaed. Despite these comments, the trial court asked counsel to state his arguments for the motion.

Counsel argued that Lopez did not have to establish ineffective assistance of counsel to prevail under section 1473.7, only that there were factors “that materially prejudiced the defendant’s ability to understand and deal with adverse immigration process.” Counsel pointed to defense counsel’s request in 1995 to be removed from the case, which was denied; a lack of attorney-client communication on immigration consequences; the failure of defense counsel to mitigate against adverse immigration consequences; and the “different offer” that Lopez believed was “on the table.”

The trial court first noted that good cause to excuse Lopez’s appearance at the hearing had not been shown and it was “unfair” to expect the People to defend against the motion without being able to cross-examine Lopez. Regardless, the trial court found that Lopez’s declaration stating he was unaware of adverse immigration consequences was inconsistent with the transcript of the 1995 hearing where the trial court articulated immigration consequences and Lopez affirmatively represented he understood the consequences. The trial court found there was no prejudicial error and denied the section 1473.7 motion.

Lopez appealed from the denial of the section 1473.7 motion on March 22, 2018.

DISCUSSION

Lopez contends defense counsel rendered ineffective assistance in 1995, or there was prejudicial error, which warrants granting his section 1473.7 motion.

STANDARD OF REVIEW

Appellate courts apply a de novo standard of review to rulings on section 1473.7 motions. (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76 (Ogunmowo); see People v. Olvera (2018) 24 Cal.App.5th 1112, 1116.) The appellate court in Ogunmowo stated:

“De novo review is the appropriate standard for a mixed question of fact and law that implicates a defendant’s constitutional right. (People v. Cromer (2001) 24 Cal.4th 889, 899–902.) A defendant’s claim that he or she was deprived of the constitutional right to effective assistance of counsel ‘presents a mixed question of fact and law,’ and we accordingly review such question independently. (In re Resendiz (2001) 25 Cal.4th 230, 248, abrogated in part on other grounds in Padilla v. Kentucky (2010) 559 U.S. 356, 370 [(Padilla)].) We 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 trial counsel’s deficient performance and resulting prejudice to the defendant. (In re Resendiz, supra, 25 Cal.4th at p. 249.)” (Ogunmowo, supra, 23 Cal.App.5th at p. 76.)

We apply this de novo standard of review in assessing the trial court’s denial of Lopez’s section 1473.7 motion in which he argued his conviction was legally invalid because his defense counsel rendered ineffective assistance of counsel by failing to adequately inform him of the immigration consequences of his plea or negotiate an immigration safe plea, or there was error, and he was prejudiced as a result. (Ogunmowo, supra, 23 Cal.App.5th at p. 76.)

We defer to the trial court’s factual findings if supported by substantial evidence. (Ogunmowo, supra, 23 Cal.App.5th at p. 76; People v. Olvera, supra, 24 Cal.App.5th at p. 1116.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We do not reweigh the evidence or reevaluate witness credibility. (People v. D’Arcy (2010) 48 Cal.4th 257, 293.)

SECTION 1473.7

Section 1473.7 was enacted in 2016 and became effective on January 1, 2017. (Stats. 2016, ch. 739, § 1.) As enacted and at the time of the hearing on Lopez’s motion, this statute provided in part:

“(a) A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence for either of the following reasons:

“(1) The 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 a plea of guilty or nolo contendere.

“(2) Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.” (§ 1473.7, subd. (a)(1) & (2).)

Effective January 1, 2019, section 1473.7, subdivision (a)(1) was amended by the Legislature to provide: “A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.” (Stats. 2018, ch. 825, § 2; § 1473.7, subd. (a)(1).) The Supreme Court has yet to publish any decision addressing section 1473.7.

The statute further provides that all motions “shall be entitled to a hearing.” (§ 1473.7, subd. (d).) The moving party has the burden of establishing by a preponderance of the evidence any of the grounds for relief specified in subdivision (a). (Id., subd. (e)(1).) In addition, the trial court must specify the basis for a grant or denial of the motion. (Id., subd. (e)(4).) An order granting or denying the motion is appealable. (Id., subd. (f).)

Section 1473.7 allows a defendant to “challenge his or her conviction based on a mistake of law regarding the immigration consequences of a guilty plea or ineffective assistance of counsel in properly advising the defendant of the consequences when the defendant learns of the error postcustody.” (People v. Perez (2018) 19 Cal.App.5th 818, 828.) “There is no requirement in the statute that the defendant had to have pled guilty after the effective date of the statute.” (Ibid.) Consequently, although Lopez entered his plea in 1995, he may seek to avail himself of the relief afforded by section 1473.7.

A motion asserting grounds for relief pursuant to section 1473.7, subdivision (b) must be filed with “reasonable diligence” after the later of:

“(1) The date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal.

“(2) The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final.” (Stats. 2016, ch. 739, § 1; § 1473.7, subd. (b)(1) & (2).)

No Ineffective Assistance of Counsel

Lopez contends defense counsel was ineffective for failing to explain adverse immigration consequences of his plea and failing to negotiate an immigration safe plea. Lopez failed to establish ineffective assistance of counsel.

“Ineffective assistance of counsel that damages a defendant’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a guilty plea, if established by a preponderance of the evidence, is the type of error that entitles the defendant to relief under section 1473.7.” (Ogunmowo, supra, 23 Cal.App.5th at p. 75.) There are two elements for demonstrating ineffective assistance of counsel: (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) the defendant was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687.) If a defendant fails to establish either element, the ineffective assistance claim fails. (Id. at p. 697.)

Lopez cannot show that defense counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms in 1995. In 1995, defense counsel was only affirmatively required to inform Lopez of immigration consequences if he directly asked; Lopez’s declaration does not state that he asked defense counsel directly about immigration consequences before entering his plea. (People v. Soriano (1987) 194 Cal.App.3d 1470, 1480‒1482.) The requirement that defense counsel affirmatively inform defendants of immigration consequences only arose with the decision in Padilla, which was not retroactive. (Padilla, supra, 559 U.S. at pp. 365, 369.) This was a full 15 years after Lopez entered his plea.

As for negotiating a different, immigration safe plea, there is no evidence in the record that the prosecution in 1995 was willing to enter into a different plea agreement. Lopez’s speculation that another disposition could have been negotiated “ ‘is not evidence, less still substantial evidence.’ ” (People v. Waidla (2000) 22 Cal.4th 690, 735; People v. Tapia (2018) 26 Cal.App.5th 942, 953‒954.) Further, we note that Lopez pled to the section 422 offense against the advice of defense counsel and a mere 10 days after the complaint was filed. Defense counsel was not afforded the opportunity by Lopez to negotiate a different plea.

Lopez has failed to establish ineffective assistance of counsel. We turn now to whether Lopez established prejudicial error.

No Prejudicial Error

Lopez argued at the section 1473.7 hearing and contends in supplemental briefing that he need not establish ineffective assistance of counsel to obtain relief pursuant to section 1473.7, but only prejudicial error. We conclude Lopez has failed to show prejudicial error.

To establish prejudicial error under section 1473.7, Lopez must establish by a preponderance of the evidence: (1) he did not meaningfully understand or knowingly accept the actual or potential adverse immigration consequences of his plea; and (2) had he understood the consequences, it is reasonably probable he would have attempted to defend against the charge. (People v. Mejia (2019) 36 Cal.App.5th 859, 862 (Mejia).) If the movant establishes prejudicial error by a preponderance of the evidence, the court is required to grant the requested relief. (§ 1473.7, subd. (e)(1).)

The focus is on the defendant’s, in this case Lopez’s, decision making. The mindset of the defendant and what he understood at the time of entering the plea is key. (Mejia, supra, 36 Cal.App.5th at p. 866.) The question is not whether the defendant would have received a more favorable outcome or been convicted of the same crime if he had gone to trial; rather, it is whether, if aware of its immigration consequences, the defendant would have rejected the plea. The defendant shows prejudice if he can convince the court he never would have entered the plea if it would render him deportable. (People v. Camacho (2019) 32 Cal.App.5th 998, 1011‒1012.)

Lopez claims he is prejudiced because he pled to an offense that had adverse immigration consequences of which he was unaware because it qualified as an aggravated felony and defense counsel should have negotiated an immigration safe plea.

An immigrant convicted of an aggravated felony at any time after admission to the United States is deportable. (See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43).) As for whether a section 422 offense in 1995 constituted an aggravated felony under federal law, the classification as an aggravated felony under federal law is “not a consequence of the plea; it is simply a legal classification for certain offenses.” (People v. Tapia, supra, 26 Cal.App.5th at p. 953.)

However, at the time Lopez pled to the section 422 offense in 1995, it did not come within the definition of an aggravated felony with adverse immigration consequences. An aggravated felony currently is defined in section 1101(a)(43)(F) of title 8 of the United States Code as a crime of violence with a potential term of imprisonment of at least one year. In 1995, an aggravated felony was defined as a crime of violence with a potential term of imprisonment of at least five years. (Pub. Law 103‒236, former 8 U.S.C. § 1101(a)(43)(F) eff. until April 23, 1996; United States v. Fuentes-Barahona (9th Cir. 1997) 111 F.3d 651, 652; United States v. Reyes-Castro (10th Cir. 1993) 13 F.3d 377, 378.) The section 422 offense in 1995 had a maximum possible term of three years.

Lopez also claims he was prejudiced because section 422 is a crime of moral turpitude, as set forth in section 1182(a)(2)(A)(i)(I) of title 8 of the United States Code a conviction for which renders him deportable. To establish that prejudicial error occurred in 1995, Lopez would have to show that section 422 was a crime of moral turpitude in 1995. However, section 422 was not categorically included as a crime of moral turpitude until 2012, when the Ninth Circuit so held in Latter-Singh v. Holder (9th Cir. 2012) 668 F.3d 1156, 1158. Prior to this decision, federal law had held that criminal threats without accompanying serious physical harm did not necessarily equate to a crime of moral turpitude. (Fernandez-Ruiz v. Gonzales (9th Cir. 2006) 468 F.3d 1159, 1167.) Although a state decision issued in 1992 had found a violation of section 422 to be a crime involving moral turpitude, California’s definition was not binding on federal courts. (People v. Thornton (1992) 3 Cal.App.4th 419, 424; Latter-Singh v. Holder, supra, 668 F.3d at p. 1163, fn. 4.)

Moreover, Lopez pled to the offense a mere 10 days after the complaint was filed and entered his no contest plea against the advice of his defense counsel. Prior to Lopez entering his no contest plea in 1995, defense counsel informed the trial court that “the defendant said he did not wish to continue with this case any further and wanted to enter a plea of no contest to the [section] 422, accepting the one year max, against my recommendation.” Lopez rushed to plead to the offense against the advice of defense counsel and did not provide defense counsel an opportunity to negotiate a more favorable disposition.

Additionally, Lopez was advised of adverse immigration consequences by the trial court. The trial court gave the section 1016.5 advisement on immigration consequences before accepting Lopez’s plea. Lopez received the following immigration advisement:

“[D]o you understand that if you are not a citizen, you are hereby advised that conviction of the offense to 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.”

After giving this advisement, the trial court asked Lopez if he understood the immigration consequences advisement and he responded, “Yes.”

“One of the purposes of the section 1016.5 advisement is to enable the defendant to seek advice from counsel about the actual risk of adverse immigration consequences.” (People v. Patterson (2017) 2 Cal.5th 885, 896.) After being specifically advised by the trial court his plea could lead to his deportation, denial of naturalization, or exclusion from admission to the United States, Lopez did not request more time to speak with counsel or further consider the appropriateness of entering a plea. (§ 1016.5, subd. (b).) Instead, when asked by the trial court if he understood, Lopez affirmatively stated he understood this advisement and wanted to proceed with entry of a plea.

The only evidence Lopez was not advised of the immigration consequences of his plea is his own self-serving declaration. The superior court found Lopez’s declaration not credible because it was inconsistent with the transcript of the plea hearing where the trial court issued an immigration advisement and Lopez affirmatively represented he understood the immigration consequences of his plea. We do not reevaluate witness credibility. (People v. D’Arcy, supra, 48 Cal.4th at p. 293.)

Furthermore, Lopez had a prior record and was on probation at the time he committed the section 422 offense; he was not unfamiliar with the criminal justice system. He faced revocation of probation and a three-year prison sentence on the section 422 offense. This information combined with Lopez’s rush to plead to the offense 10 days after he was charged, against the advice of defense counsel, and after being advised of adverse immigration consequences by the trial court, provides contemporaneous evidence that Lopez would have entered the plea regardless. (Jae Lee v. United States (2017) 582 U.S. ___ [137 S.Ct. 1958, 1966‒1967]; Mejia, supra, 36 Cal.App.5th at p. 866.)

In Jae Lee, the Supreme Court noted, “A defendant without any viable defense will be highly likely to lose at trial. And a defendant facing such long odds will rarely be able to show prejudice from accepting a guilty plea that offers him a better resolution than would be likely after trial.” (Jae Lee v. United States, supra, 582 U.S. at p.__ [137 S.Ct. at p. 1966].) The reason is that “defendants obviously weigh their prospects at trial in deciding whether to accept a plea. [Citation.] Where a defendant has no plausible chance of an acquittal at trial, it is highly likely that he will accept a plea if the Government offers one.” (Ibid.)

Here, Lopez was on probation for willful infliction of corporal injury on his spouse when he made a criminal threat to track her down and kill her. When officers accompanied his wife to their apartment to collect her belongings, Lopez repeatedly threatened to kill his wife if she left; the threats were made in the presence of officers. When he was arrested, Lopez told officers, “I did mean it, if you don’t take me to jail, I’m going to kill her.” Lopez had no plausible chance of acquittal at trial and faced a term of 18 months to three years in prison if convicted at trial, instead of one year in jail under the plea agreement. Thus, Lopez cannot show prejudice from accepting a plea agreement that offered him a better resolution than he would receive after trial. (Jae Lee v. United States, supra, 582 U.S. at p.__ [137 S.Ct. at p. 1966].)

Lopez failed to meet his burden of proof to establish the elements of section 1473.7, subdivision (a)(1). The superior court did not err in denying his motion.

DISPOSITION

The order denying the section 1473.7 motion is affirmed.