Filed 5/10/22 P. v. Duarte CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Sergio Alcantar Duarte, a noncitizen of the United States, challenges the trial court’s denial of his motion under Penal Code section 1473.7 to withdraw a 2002 guilty plea to statutory rape. Defendant argues he did not meaningfully understand the immigration consequences of his plea (considered “immigration safe” in 2002), in light of a 2017 United States Supreme Court opinion defining “sexual abuse of a minor” under the Immigration and Nationality Act to encompass his offense. For the reasons stated here, we will affirm.

1. BACKGROUND

In June 2002, defendant was charged by felony complaint with three sexual offenses against a 15-year-old female: sexual penetration of a person under the age of 16 by a defendant over the age of 21 (Pen. Code, § 289, subd. (i); count 1), unlawful sexual intercourse where the defendant is age 21 or older and the minor is under the age of 16 (id., § 261.5, subd. (d); count 2), and a lewd and lascivious act on a child 14 or 15 years of age while the defendant was at least 10 years older than the child (id., § 288, subd. (c)(1); count 3). The offenses were alleged to have occurred between March and June 2002, when defendant was 26 years old. At a hearing in September 2002, defendant waived his right to a preliminary hearing and pleaded guilty to count 2 pursuant to a negotiated disposition which included serving 10 months in county jail. Counts 1 and 3 were dismissed at sentencing, defendant was placed on three years’ formal probation with restitution to be determined, and he was ordered to serve 10 months in county jail. According to the probation report, defendant was born in Mexico and had been a documented United States resident for two years.

In 2018 defendant filed a motion to withdraw his 2002 guilty plea under Penal Code sections 1016.5 and 1473.7. (Undesignated statutory references are to the Penal Code.) Counsel represented to the court at that time that defendant’s “goal is to become naturalized.” Defendant argued in his moving papers that there was no record of the court administering the mandatory immigration advisement under section 1016.5, subdivision (a), and defendant’s attorney in 2002 did not provide affirmative and competent advice regarding the potential immigration consequences of his plea because a statutory rape conviction under section 261.5, subdivision (d) now renders a noncitizen removable. Defendant stated in a supporting declaration that his attorney advised him that the plea deal “was favorable in terms of criminal punishment and it should not have any immigration consequences.” But he was not advised regarding the “potential adverse immigration consequences” of the plea or his case. He had viable defenses to the charges, and he would have rejected the plea had he known it would have had immigration consequences. Further, he did not recall the court administering the immigration advisement.

At the hearing on that motion, counsel argued that his “main argument” under section 1473.7 was not ineffective assistance of counsel because in 2002 admitting a violation of section 261.5, subdivision (d) was “an immigration-safe plea,” an understanding that comported with counsel’s advice in 2002 and was later confirmed “in the Garcia case.”[1] Counsel argued that defendant was “likely … deportable based on [a] recent supreme court case[]”; defendant’s attorney in 2002 could not have advised defendant properly “because nobody could have foreseen what happened just recently”; and the recent change in the law resulted in defendant not meaningfully understanding the consequences of his plea. The trial court found no error occurring at the time of the plea, or prejudice resulting from unforeseen consequences. The court rejected defendant’s claim under section 1016.5 in light of the clerk’s minutes from the plea hearing indicating immigration advisements were given.

In 2020, defendant filed a second motion under section 1473.7 to withdraw his 2002 guilty plea. Counsel again argued that defendant did not meaningfully understand the immigration consequences of his plea because in 2002 a violation of section 261.5, subdivision (d) was considered “immigration safe,” but the consequences of his plea changed in 2017 when the United States Supreme Court in Esquivel-Quintana v. Sessions (2017) 137 S.Ct. 1562 (Esquivel-Quintana) “clarified” the definition of “sexual abuse of a minor” for purposes of the Immigration and Nationality Act.[2] Defendant’s conviction now posed “serious immigration consequences.” Counsel argued the motion was based on different grounds than those raised in the 2018 motion because section 1473.7 no longer required a showing of ineffective assistance of counsel, and defendant’s supporting declaration provided additional facts to establish prejudice.

In support of his 2020 motion, defendant declared that he did not know his conviction could subject him to deportation years after entering into a plea deal; immigration consequences were determinative in his decision to accept the deal; he would not have accepted the deal had he known the conviction “could result in [the] denial of immigration benefits or relief”; at the time of his plea, he was married to a United States citizen, they had a two-year-old daughter, he was employed, studying English and computer technology, and would not have knowingly accepted a deal “put[ting] all that at risk.” He is now “completely rehabilitated,” he works hard to support his family, and he is “a productive member of society.” He provided copies of his wife’s California birth certificate and the California birth certificates for his four children. The trial court denied the motion, finding no prejudicial error at the time defendant entered his plea, as contemplated by the statute. Defendant appeals from the denial of the 2020 motion.

2. Discussion

Enacted in 2016, section 1473.7 permits a noncitizen who is no longer imprisoned or restrained to move to vacate a conviction “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 conviction or sentence.” (§ 1473.7, subd. (a)(1); Stats. 2016, ch. 739, § 1.) The statute was amended in 2018 to add: “A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.” (Stats. 2018, ch. 825, § 2.) The inquiry in a section 1473.7 motion thus encompasses “[a] defendant’s own error in … not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.” (People v. Camacho (2019) 32 Cal.App.5th 998, 1009.) Prejudicial error occurs when the defendant demonstrates “a reasonable probability that [he] would have rejected the plea if [he] had correctly understood its actual or potential immigration consequences.” (People v. Vivar (2021) 11 Cal.5th 510, 529.)

We independently review the denial of a motion brought under section 1473.7, subdivision (a). (People v. Vivar, supra, 11 Cal.5th at pp. 524–527 & fn. 4.) We exercise our independent judgment to interpret facts derived from written declarations and other documents, and to determine whether the facts satisfy the law. (Id. at pp. 527–528.)

Defendant advances here the same argument he twice advanced in the trial court: He could not have meaningfully understood the immigration consequences of his plea in 2002 because he did not know at that time that the Supreme Court, 15 years later in Esquivel-Quintana, would define the generic offense of sexual abuse of a minor under the Immigration and Nationality Act (the INA) to encompass a violation of section 261.5, subdivision (d). The Supreme Court in Esquivel-Quintana held that a conviction under section 261.5, subdivision (c)—proscribing a person from “engag[ing] in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator”—does not categorically qualify as sexual abuse of a minor under the INA, as it criminalizes “at a minimum, consensual sexual intercourse between a victim who is almost 18 and a perpetrator who just turned 21.” (Esquivel-Quintana, supra, 137 S.Ct. at pp. 1568–1569.) Significant to this case, the court explained “in the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor [under the INA] requires that the victim be younger than 16.” (Id. at p. 1568.) The court did not decide whether the generic offense of sexual abuse of a minor under the INA requires a particular age differential between the victim and the perpetrator. (Id. at p. 1572.)

Section 1473.7 is concerned with “the mindset of the defendant and what he or she understood—or didn’t understand—at the time the plea was taken.” (People v. Mejia (2019) 36 Cal.App.5th 859, 866.) Assuming defendant’s 2020 motion was brought in a timely manner (§ 1473.7, subd. (c) [the motion “shall be filed without undue delay from the date [defendant] discovered, or could have discovered with the exercise of due diligence, the evidence that provides a basis for relief”]), we see no error bearing on defendant’s ability in 2002 to meaningfully understand the immigration consequences of his plea. Defendant’s understanding at the time was that a plea to section 261.5, subdivision (d) was “immigration safe.” That understanding was confirmed by the Ninth Circuit several years later in Pelayo-Garcia v. Holder (see footnote 1, ante, page 3), and defendant does not argue that he was subject to adverse immigration consequences in the 15 years before the Supreme Court decided Esquivel-Quintana. Defendant’s lack of awareness that the Supreme Court in 2017 would define sexual abuse of a minor under the INA to implicate a violation of section 261.5, subdivision (d) does not constitute error under section 1473.7.

Even if defendant’s understandable ignorance regarding unforeseeable developments in immigration law is deemed his “own error” (People v. Camacho, supra, 32 Cal.App.5th at p. 1009), defendant has failed to show prejudice relating to his plea. Prejudice under section 1473.7 is demonstrated by a showing that “in the absence of the error regarding immigration consequences, it’s reasonably probable the moving party would not have entered the plea.” (People v. Vivar, supra, 11 Cal.5th at p. 534.) Factors relevant to the prejudice inquiry include “the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible.” (Id. at pp. 529–530.)

It is not reasonably probable that defendant would have risked going to trial on readily provable charges carrying prison exposure and mandatory sex offender registration, had he known that a guilty plea to count 2 would pose an impediment to naturalization 15 years later. Defendant accepted an early resolution of his case that not only provided a favorable disposition, but also allowed him and his wife to avoid the discomfort of a trial (where the victim was a family friend) and put the matter quickly behind them.

Defendant attested that the right to remain in the United States was more important than any potential jail sentence; at the time of his plea he was married to a United States citizen; they had a two-year-old daughter; he was employed; he would not have knowingly entered a plea putting him at risk; his young family “would have faced extreme hardship [had he been] forced to return to [Mexico]”; and he wished to withdraw his plea to “assert defenses in this case.” But defendant’s plea did not subject him to adverse immigration consequences until 2017; defendant does not claim that he was ever in removal proceedings or ordered to depart the United States. Defendant admitted to having sex with the 15-year-old victim. Although he claimed the sex was consensual, consent is not a defense to statutory rape. (People v. Kemp (1934) 139 Cal.App.48, 51; CALCRIM No. 1070.)

Even if defendant had known in 2002 that his conviction would pose an impediment to naturalization 15 years later, it is not reasonably probable that he would have rejected the plea bargain. To the contrary, defendant would have had the incentive to accept the plea with its favorable disposition and to naturalize at his first opportunity. (See 8 U.S.C. § 1427(a) [authorizing naturalization for legal permanent resident residing within the United States for 5 years preceding naturalization application].) To the extent he is prejudiced, it is because he failed to secure United States citizenship while the law was in his favor, not because he entered what was then an immigration safe plea in 2002. (We do not address defendant’s argument that his plea may be withdrawn under section 1018 because of “ ‘[m]istake, ignorance or any other factor overcoming the exercise of free judgment,’ ” as his motion in the trial court was not brought on those statutory grounds.)

3. DISPOSITION

The October 15, 2020 order denying defendant’s motion to withdraw his plea is affirmed.

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Grover, J.

WE CONCUR:

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Greenwood, P. J.

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Danner, J.

H048568 - The People v. Duarte

[1] In 2009, the Ninth Circuit held that section 261.5, subdivision (d) “does not qualify as the generic federal crime of ‘sexual abuse of a minor,’ and therefore is not categorically an aggravated felony” under the Immigration and Nationality Act. (Pelayo-Garcia v. Holder (9th Cir. 2009) 589 F.3d 1010, 1016.)

[2] “Sexual abuse of a minor” is an aggravated felony under the Immigration and Nationality Act. (8 U.S.C. § 1101(a)(43)(A).) A noncitizen convicted of an aggravated felony is subject to removal from the United States. (8 U.S.C. § 1227(a)(2)(A)(iii).)