Filed 9/28/18 In re Munoz-Moreno CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

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After Juan Carlos Munoz-Moreno pleaded guilty to possession of methamphetamine, the trial court granted him deferred entry of judgment (DEJ). Munoz-Moreno later filed a petition for writ of habeas corpus, claiming his plea should be vacated because his counsel was ineffective in misinforming him of the immigration consequences of the plea. The trial court issued an order granting habeas relief and vacating the plea.

The People appeal (Pen. Code, § 1506),[1] arguing (1) defense counsel’s performance was not deficient, and (2) the trial court applied the wrong standard of prejudice and Munoz-Moreno did not suffer prejudice. We will affirm the trial court’s order.

BACKGROUND

A Placer County Sheriff stopped Munoz-Moreno and a subsequent search revealed a small white baggy with a rock-like substance. Munoz-Moreno acknowledged it was cocaine. Officers arrested him, and at the jail Munoz-Moreno said he was not a United States citizen.

The initial complaint charged Munoz-Moreno with possession of a controlled substance (cocaine). (Health & Saf. Code, § 11350.) Pursuant to plea negotiations, an amended complaint added a charge of possession of methamphetamine, which at the time was a wobbler offense. (Health & Saf. Code, § 11377, subd. (a).) Prior to the plea, Munoz-Moreno initialed a waiver of rights and plea form, in which he indicated his understanding that if he was not a citizen of the United States, his plea “ ‘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.’ (§ 1016.5).” Munoz-Moreno’s trial attorney, Barry Jones, advised Munoz-Moreno there might be immigration problems in the future based on Munoz-Moreno’s conviction, and that a criminal conviction of any kind could result in deportation. Jones also informed Munoz-Moreno that if he successfully completed the DEJ program, his criminal charges would be dismissed and the plea would not constitute a conviction. In addition, it was Jones’s practice in cases with uncertain immigration consequences to advise his client to seek a consultation with an immigration attorney to determine the specific consequences of a plea.

During a plea colloquy, the trial court and Munoz-Moreno had the following exchange:

“THE COURT: Have you had a chance to go over the waiver of rights and plea form that have been handed to me?

“[MUNOZ-MORENO]: Yes, I did.

“THE COURT: Do you understand each of the rights that you would have if you wanted to have a trial?

“[MUNOZ-MORENO]: Yes, I do, your Honor.

“THE COURT: And have you read the back of the form that explains to you the consequences of a felony plea?

“[MUNOZ-MORENO]: Yes.

“THE COURT: Specifically do you understand that if you are not a citizen of the United States, this conviction may have the consequence of deportation, exclusion for admission to the United States, or denial of naturalization?

“[MUNOZ-MORENO]: Yes, I understand, you Honor.”

Munoz-Moreno then pleaded guilty to a felony charge of possession of methamphetamine. The trial court admitted him to DEJ (§ 1000) and imposed various terms and conditions of DEJ admission. Munoz-Moreno subsequently violated the terms and conditions of DEJ. The trial court removed him from the program and placed him on probation for five years.

In January 2016, the Department of Homeland Security detained Munoz-Moreno. He filed a petition for writ of habeas corpus in the Placer County Superior Court, arguing his trial counsel provided ineffective assistance by misadvising him of the immigration consequences of his plea. Attached to the writ petition was a declaration by Munoz-Moreno stating the following: that had his attorney advised him of the actual immigration consequences of his plea, Munoz-Moreno would not have accepted the plea bargain. He would have asked his lawyer to negotiate for a different deal even if it meant Munoz-Moreno would not get DEJ. Munoz-Moreno would have insisted on going to trial if there was no other offer, and he would have done whatever was necessary to avoid the immigration consequences of deportation. He said it was extremely important to him to live in the United States because his family and entire life is here.

The trial court issued an order granting habeas relief and vacating Munoz-Moreno’s plea. The trial court found defense counsel’s actions were constitutionally deficient because he failed to advise Munoz-Moreno of the “specific clear consequences that would result from his diversion plea” and “failed any attempt” to negotiate a resolution that would have mitigated the immigration consequences. Applying the standard of prejudice set forth in People v. Martinez (2013) 57 Cal.4th 555, 595 (Martinez) -- the defendant must show he would not have entered into the plea bargain if properly advised -- the trial court found prejudice because Munoz-Moreno’s desire to avoid immigration consequences was undoubtedly a priority, and it would be objectively reasonable for a person in his position to explore a resolution that did not involve diversion but would give the People an assured conviction with three years of probation, jail time and other appropriate terms.

STANDARD OF REVIEW

Ineffective assistance of counsel is established by proving that (1) trial counsel’s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant. (People v. Maury (2003) 30 Cal.4th 342, 389; Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) On review from a habeas corpus petition, a claim of ineffective assistance of counsel presents a mixed question of fact and law. These questions are generally subject to de novo review. (In re Resendiz (2001) 25 Cal.4th 230, 248-249 (Resendiz), disapproved on other grounds in Padilla v. Kentucky (2010) 559 U.S. 356 [176 L.Ed.2d 284] (Padilla).) Although factual determinations made by the trial court are entitled to deference when based on personal observations of witnesses, where, as here, the trial court’s factual findings are not based on live testimony, we independently review the record to determine whether, by a preponderance of substantial, credible evidence, defense counsel’s performance was deficient and, if so, whether Munoz-Moreno suffered prejudice. (Resendiz, at p. 249; In re Alvernaz (1992) 2 Cal.4th 924, 945; see also In re Alcox (2006) 137 Cal.App.4th 657, 664-665.)

DISCUSSION

The People contend defense counsel’s performance was not deficient. We disagree.

In Padilla, supra, 559 U.S. 356 [176 L.Ed.2d 284], the United States Supreme Court held that a defense attorney has an affirmative obligation to provide competent advice to noncitizen criminal defendants regarding the potential immigration consequences of guilty or no contest pleas. (Chaidez v. United States (2013) 568 U.S. 342, 344 [185 L.Ed.2d 149].) The court in Padilla recognized that immigration law can be complex and there are “numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.” (Padilla, at p. 369.) In some cases “the most that can reasonably be said is that the conviction ‘may’ have adverse immigration consequences.” (People v. Patterson (2017) 2 Cal.5th 885, 898 (Patterson).) But where federal immigration law is clear that a conviction would make removal virtually certain, counsel must so advise the client. (United States v. Rodriguez-Vega (9th Cir. 2015) 797 F.3d 781, 786 (Rodriguez-Vega), citing Padilla, at p. 369; United States v. Bonilla (9th Cir. 2011) 637 F.3d 980, 984.) “Where the immigration statute or controlling case law expressly identifies the crime of conviction as a ground for removal, ‘the deportation consequence is truly clear.’ ” (Rodriguez-Vega, at p. 786, quoting Padilla, at p. 369; see also Patterson, at p. 898.) In circumstances of such clarity, the generic advisement under section 1016.5 that there “may” be consequences is insufficient. (Rodriguez-Vega, at p. 786, quoting Padilla, at p. 369; see also Patterson, at p. 898.) Thus, the first issue we must determine in assessing counsel’s performance is whether the immigration consequences of a plea to possession of methamphetamine were clear.

As the California Supreme Court explained, there are very few situations where a plea to a narcotics violation would not have a fatal and permanent immigration consequence; an undocumented immigrant convicted of a crime relating to controlled substances is deportable and excludable. (Resendiz, supra, 25 Cal.4th at pp. 251-252.) Under the Immigration and Nationality Act (the Act) (8 U.S.C. § 1101 et seq.), an undocumented immigrant who has been convicted of violating a controlled substance law is deportable except for a single offense involving possession for one’s own use of 30 grams or less of marijuana. (8 U.S.C. § 1227(a)(2)(B)(i).) Any such deportable individual shall be removed upon order of the Attorney General. (8 U.S.C. § 1227(a).) These provisions command removal for all controlled substance convictions except the most trivial marijuana possession offenses. (Padilla, supra, 559 U.S. at p. 368 [176 L.Ed.2d at p. 295].)

Accordingly, the immigration statute expressly identifies the crime of conviction as a ground for removal in this case. The immigration consequence of Munoz-Moreno’s plea was clear and counsel had a duty to so advise him before Munoz-Moreno entered his guilty plea. (Rodriguez-Vega, supra, 797 F.3d at p. 786, quoting Padilla, at p. 369; see also Patterson, supra, 2 Cal.5th at p. 898.)

The negotiation and grant of DEJ did not alter the certainty of the immigration consequences here. Under the Act, a conviction includes circumstances where a defendant entered a guilty plea and the judge ordered some form of punishment, penalty or restraint on the noncitizen’s liberty. (8 U.S.C.A. § 1101(a)(48)(A).) Munoz-Moreno pleaded guilty and the trial court imposed a punishment and restraint on his liberty by requiring him to go to counseling, submit to searches and drug tests, and to pay various fines and fees. Thus, Munoz-Moreno was convicted of a controlled substance offense under the Act. (Reyes v. Lynch (9th Cir. 2016) 834 F.3d 1104, 1108; Sanchez v. Sessions (9th Cir. 2017) 710 Fed.Appx. 740, 741; Hicks v. Feiock (1988) 485 U.S. 624, 639, fn. 11 [99 L.Ed.2d 721, 726]; Moosa v. INS (5th Cir. 1999) 171 F.3d 994, 1006.) Subsequent action in state court to dismiss or expunge a conviction has no effect on the federal immigration consequences of the conviction. (Martinez, supra, 57 Cal.4th at p. 560; Reyes, at p. 1108; Nunez-Reyes v. Holder (9th Cir. 2011) 646 F.3d 684, 689; Ramirez-Castro v. INS (9th Cir. 2002) 287 F.3d 1172.) Even if Munoz-Moreno had been successful on DEJ, his admission of guilt and the imposition of punishment and restraint on his liberty was a conviction for immigration law purposes and subjected him to clear deportation consequences.

Defense counsel incorrectly assured Munoz-Moreno that successful completion of DEJ would not constitute a conviction. The failure to advise Munoz-Moreno of the clear deportation consequences fell below an objective standard of reasonableness under prevailing professional norms and constituted deficient performance. (Padilla, supra, 559 U.S. at pp. 368-369 [176 L.Ed.2d at p. 295]; Patterson, supra, 2 Cal.5th at p. 901.)

II

The People further claim the trial court applied the wrong standard of prejudice, and that Munoz-Moreno did not suffer prejudice.

To establish prejudice in this particular context, it must be shown that a reasonable probability exists that, but for counsel’s incompetence, Munoz-Moreno would not have pleaded guilty to possession of methamphetamine, which subjected him to mandatory deportation. (Patterson, supra, 2 Cal.5th at p. 901.)

Here, Munoz-Moreno provided a declaration making such a showing. He said that had his attorney advised him of the actual immigration consequences of his plea, he would not have accepted the plea bargain. He would have done whatever was necessary to avoid the immigration consequences of deportation. He said it was extremely important to him to live in the United States because his family and entire life is here. There is no indication he had any ties to Mexico or had ever returned there since leaving as a child. (See Lee v. United States (2017) ___ U.S. ___ [198 L.Ed.2d 476, 480-481] (Lee).) And there is no evidence or circumstances in the record that contradict Munoz-Moreno’s declaration. (Martinez, supra, 57 Cal.4th at p. 565.)

“That a defendant might reject a plea bargain because it would result in deportation, exclusion from admission to the United States, or denial of naturalization is beyond dispute.” (Martinez, supra, 57 Cal.4th at p. 563.) Criminal convictions may have dire consequences under federal immigration law and such consequences are material matters for noncitizen defendants faced with pleading decisions. (In re Resendiz, supra, 25 Cal.4th at p. 250.) A defendant may view immigration consequences as the only ones that could affect his calculations regarding the advisability of pleading guilty to criminal charges. (Resendiz, at p. 253) The United States Supreme Court has recognized that “as a matter of federal law, deportation is an integral part -- indeed sometimes the most important part -- of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.” (Padilla, supra, 559 U.S. at pp. 364-365 [176 L.Ed.2d at p. 293], fn. omitted.) “ ‘ “Preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” ’ [Citation.]” (Id. at p. 368.)

Munoz-Moreno’s claim that he would not have accepted a plea had he known it would lead to deportation is backed by substantial and uncontroverted evidence. Accordingly, we find he has demonstrated a reasonable probability that, but for his counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. (Lee, supra, ___ U.S. at p. ___ [198 L.Ed.2d at p. 489].)

DISPOSITION

The order of the trial court is affirmed.

/S/

MAURO, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

HULL, J.