Filed 5/2/17 P. v. Aciego CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JUAN RAMONE ACIEGO,
Defendant and Appellant.
B269811
(Los Angeles County
Super. Ct. No. BA066379)
APPEAL from an order of the Superior Court of Los
Angeles County, William N. Sterling, Judge. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Steven D. Matthews and Paul S.
Thies, Deputy Attorneys General, for Plaintiff and Respondent.
2
Appellant Juan Ramone Aciego, also known as Jorge Raul
Marcia Valladares, appeals from the trial court’s denial of a
motion to vacate his conviction for possession of cocaine base for
sale. Appellant pleaded guilty to the offense, but claims he was
not properly advised of the immigration consequences of his plea,
as required under Penal Code section 1016.5.1 We conclude the
trial court did not abuse its discretion in finding appellant failed
to show prejudice from the lack of advisement, and affirm.
BACKGROUND
1. The underlying offense
On November 17, 1992, the Los Angeles District Attorney
filed an information charging appellant and codefendants
Herman Mondragon and Rodolfo Nolasco with a single count of
possession for sale of cocaine base (Health & Saf. Code,
§ 11351.5). The prosecution presented the following evidence at
the preliminary hearing:
2
On October 16, 1992, Los Angeles Police Officer Chris
Rowles, accompanied by three other officers, observed the three
defendants standing on a street corner. Rowles watched as a
man approached the defendants and spoke to them. Appellant
reached towards a wrought iron fence and removed a small black
container from it. Appellant opened the container, removed
something, and handed it to Mondragon. Mondragon then
handed something to the man, who gave him an unknown
amount of currency.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The transcript of the preliminary hearing is the only
transcript in the record from the 1992 criminal proceedings. The
trial court relied on it in ruling on appellant’s motion to vacate.
3
A few minutes later, a woman approached the group and
the process repeated, this time with Nolasco retrieving the black
container from the fence.
Rowles and the other officers then detained the three
defendants. One of the officers retrieved a black container
attached to the fence with magnets. Inside were 50 to 75 white
“wafer-type” objects, later identified by a chemist as containing
cocaine base. The officers also found $87 tucked in Mondragon’s
pants. Rowles opined that the defendants had possession of the
cocaine base for sale, based on Rowles’s observations and the
quantity of cocaine base involved.
2. The plea
Appellant was arraigned on October 20, 1992. The minute
order from the arraignment states that appellant was given
numerous advisements by videotape, including that “a 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.”
Approximately two months later, on December 16, 1992,
appellant pleaded guilty to the charge. He was sentenced to 180
days in jail, reduced to 87 days after custody and conduct credits,
and put on probation for three years. The minute order contains
a preprinted statement that “Defendant [was] advised of possible
effects of [the] plea on any alien/citizenship/probation/parole
status,” and the box next to the statement is checked.
3. The motion to vacate the conviction
In 2015, appellant consulted an attorney about applying for
legal residency in the United States. The attorney informed
4
appellant that his 1992 plea and conviction barred him from
doing so.
Appellant filed a motion to vacate his conviction and
withdraw his guilty plea under section 1016.5. In his supporting
declaration, appellant stated that at the time he took the plea he
“was afraid of any jail sentence,” and had been told by counsel
that pleading guilty would reduce his time in custody. Appellant
stated that he did not recall the court advising him during the
plea proceedings of potential immigration consequences, and had
he known the consequences, he would not have pleaded guilty.
The trial court found there was no evidence that appellant
had been properly advised during the plea proceedings. But
based on the evidence presented in the transcript of the
preliminary hearing, and the sentence appellant received, the
court found no reasonable probability that appellant would have
chosen not to plead guilty even if properly advised. The court
thus denied the motion. Appellant timely appealed.3
DISCUSSION
Appellant argues the trial court abused its discretion in
finding there was no reasonable probability appellant would have
declined the plea offer even if he had been properly informed of
the immigration consequences. We disagree. The trial court
correctly found that appellant had not received the required
advisements, but did not abuse its discretion in concluding that
appellant suffered no prejudice as a result.
3 The trial court’s order denying appellant’s motion to vacate
is appealable. (People v. Totari (2002) 28 Cal.4th 876, 887.)
5
1. Applicable law
“Section 1016.5(a) requires a trial court, before accepting a
plea of guilty or no contest, to explain to a defendant that if the
defendant is not a citizen of this country, conviction of the
charged offense ‘may have the consequences of deportation,
exclusion from admission to the United States, or denial of
naturalization . . . .’ Section 1016.5(b) provides a remedy for a
noncitizen defendant who is not advised of these consequences:
‘If . . . the court fails to advise the defendant as required by this
section and the defendant shows that conviction of the offense to
which [the] defendant pleaded guilty or nolo contendere may
have the consequences for the defendant of deportation, exclusion
from admission to the United States, or denial of
naturalization . . . the court, on [the] defendant’s motion, shall
vacate the judgment and permit the defendant to withdraw the
plea of guilty or nolo contendere, and enter a plea of not guilty.’
To prevail on a section 1016.5 motion, a defendant must establish
(1) that the advisements were not given; (2) that the conviction
may result in adverse immigration consequences; and (3) that the
defendant would not have pled guilty or no contest had proper
advisements been given.”4 (People v. Arriaga (2014) 58 Cal.4th
950, 957-958 (Arriaga).)
We review a denial of a motion under section 1016.5,
subdivision (b) for abuse of discretion. (People v. Castro–Vasquez
(2007) 148 Cal.App.4th 1240, 1244.) “When applying the
deferential abuse of discretion standard, ‘the trial court’s findings
4 The parties do not dispute that appellant’s conviction “may
result in adverse immigration consequences.” (Arriaga, supra, 58
Cal.4th at p. 958.) Thus, this opinion discusses only the first and
third prongs.
6
of fact are reviewed for substantial evidence, its conclusions of
law are reviewed de novo, and its application of the law to the
facts is reversible only if arbitrary and capricious.’ ” (In re C.B.
(2010) 190 Cal.App.4th 102, 123.)
2. Whether advisements were given
The trial court correctly found that appellant had not been
properly advised. “Absent a record that the court provided the
advisement required by this section, the defendant shall be
presumed not to have received the required advisement.”
(§ 1016.5, subd. (b)). Here, there is no record that appellant
received the advisement. The record does not contain a reporter’s
transcript of the plea proceedings. Although the December 16,
1992 minute order states that appellant was advised of the effect
of his plea on “alien/citizenship/probation/parole” status, this is
insufficient because it does not specify that the defendant was
warned of possible deportation, exclusion, and denial of
naturalization as required by the statute. (People v. Dubon
(2001) 90 Cal.App.4th 944, 954-955 [finding insufficient a preprinted
statement identical to the one here]; see Arriaga, supra,
58 Cal.4th at pp. 956, 961 [parties agreed that minute order
stating “ ‘Defendant advised of possible effects of plea on any
alien or citizenship . . . status’ ” did not “set forth the actual
advisements given” and thus “section 1016.5(b)’s presumption of
nonadvisement applies”].)
Nor is it sufficient that appellant was provided the full
advisement during his arraignment two months before he took
his plea. To satisfy section 1016.5, the advisement must take
place “within the context of the taking of the plea.” (People v.
Akhile (2008) 167 Cal.App.4th 558, 564.) Akhile held that an
advisement was inadequate when, like here, it was given at an
7
arraignment weeks before the plea was taken. (Id. at p. 561.)
The court explained that when an advisement is given weeks in
advance of the actual plea, there is “significant uncertainty as to
whether the defendant actually recalled the advisement and
understood the possible immigration consequences at the time of
entry of the plea.” (Id. at p. 564.) The court concluded that the
Legislature’s purpose in enacting section 1016.5 was to
“eliminate such uncertainty,” which necessarily required that the
advisement be given at the time the plea was taken. (Akhile, at
p. 564.) Under Akhile, the trial court was correct to find that the
advisements at appellant’s arraignment did not satisfy section
1016.5.
3. Prejudice
The trial court did not abuse its discretion in finding that,
although appellant did not receive the required advisements, he
suffered no prejudice as a result. When evaluating prejudice,
“relief may be granted if the court is convinced the defendant, if
properly advised, would have rejected an existing plea offer in the
hope or expectation that he or she might thereby negotiate a
different bargain, or, failing in that, go to trial.” (People v.
Martinez (2013) 57 Cal.4th 555, 567 (Martinez).) “[I]n
determining the credibility of a defendant’s claim, the court in its
discretion may consider factors presented to it by the parties,
such as the presence or absence of other plea offers, the
seriousness of the charges in relation to the plea bargain, the
defendant’s criminal record, the defendant’s priorities in plea
bargaining, the defendant’s aversion to immigration
consequences, and whether the defendant had reason to believe
that the charges would allow an immigration-neutral bargain
that a court would accept.” (Id. at p. 568.)
8
Here, the court evaluated the evidence presented at the
preliminary hearing and the “pretty lenient probationary offer,”
and concluded that it was not reasonably probable appellant
would have rejected the offer. This conclusion is supported by
substantial evidence. (In re C.B., supra, 190 Cal.App.4th at
p. 123 [under abuse of discretion standard, trial court’s findings
of fact are reviewed for substantial evidence].) Contrary to
appellant’s assertion, the case against appellant was strong.
Four police officers had witnessed him participate in a cocaine
sale, with a substantial quantity of drugs recovered from the
scene. This was powerfully incriminating evidence even if, as
appellant notes, there was no confession or video or audio
recording of the sale. Nor did it matter, as appellant argues, that
appellant had no contraband on his person and did not directly
interact with the drug purchasers, when he clearly was handling
the container with the drugs and assisting his codefendant in
conducting the sale.
The trial court also reasonably concluded that the plea offer
was one appellant was likely to accept given the evidence against
him. At the time, the offense with which he was charged carried
a potential sentence of three, four, or five years in state prison.
(Health & Saf. Code, former § 11351.5 (eff. Sept. 26, 1987).) In
his declaration, appellant stated that he “was afraid of any jail
sentence,” and an offer of a short jail stay followed by probation
would certainly be preferable to several years in state prison.
The trial court did not abuse its discretion in concluding that this
was a lenient and attractive offer.
Although appellant asserted in his declaration that he
would have turned down this offer if properly advised, he put
forth little evidence to support this claim. Appellant did not, for
9
example, suggest that he had reason to believe he could obtain a
better, immigration-neutral bargain, or explain why his concern
for immigration consequences would have overridden his
admitted fear of imprisonment at that time. Appellant’s
declaration described the reasons he wanted to stay in the United
States now, such as not disrupting the life and family he had
built in the 25 years after his plea was taken, but he did not
claim that these concerns or similar ones existed at the time he
took his plea, just a few years after his arrival in the United
States.
5 Thus, although appellant claimed he would have
rejected the offer if properly advised, he provided little basis for
the trial court to find this claim credible.
We reject appellant’s argument that the trial court abused
its discretion by applying the wrong legal standard. Before
hearing argument, the court stated “it does not appear to me that
it’s reasonably probable that [appellant] would have gone to trial
given the testimony at the preliminary hearing and the pretty
lenient probationary offer to which he pleaded.” Appellant
argues this misstates the legal standard, because the test for
prejudice is not solely whether appellant, if properly advised,
would have gone to trial, but also whether he would have “tr[ied]
to obtain a better bargain that does not include immigration
consequences.” (Martinez, supra, 57 Cal.4th at p. 567.)
We do not view the trial court’s comment as a formal
statement of the legal standard applied. In making its ruling, the
court said that, given the leniency of the sentence and the
strength of the evidence of guilt, “I don’t think there’s a
5 Appellant’s declaration stated that he came to the United
States from Honduras in the “late 1980s.”
10
reasonable probability that [appellant] would have turned [the
offer] down . . . .” Thus, the trial court was not considering solely
whether appellant would have gone to trial, but whether
appellant would have turned the offer down for any reason,
including, presumably, to seek a better offer. But even accepting
appellant’s argument, as discussed above appellant provided no
evidence by which the trial court could evaluate whether he
would have “tr[ied] to obtain a better bargain.” (Martinez, supra,
57 Cal.4th at p. 567.) In the absence of such evidence, any error
by the trial court in not considering the possibility of a “better
bargain” is understandable and, more importantly, harmless.
DISPOSITION
The trial court’s order denying appellant’s motion to vacate
his conviction is affirmed.
FLIER, Acting P. J.
WE CONCUR:
GRIMES, J.
SORTINO, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.