P. v. Ochoa

Filed 8/29/06 P. v. Ochoa CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. W. Charles Morgan, Judge. Affirmed.

Kenneth H. Lewis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and James Flaherty, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Jose Adalberto Ochoa (defendant) unsuccessfully challenges the trial court’s denial of his motion to withdraw his guilty plea.

I

FACTUAL AND PROCEDURAL HISTORY

On May 30, 1993, Amy, a minor was swimming in Lake Perris when defendant grabbed her thigh, and then reached up and grabbed her vaginal area. Michelle, a minor, was swimming with Amy when defendant grabbed her vaginal area. Defendant then dove down beneath Michelle and grabbed her vaginal area a second time. Carina R. was floating on her raft when defendant swam up and grabbed her buttocks. Thereafter, defendant touched Debra M.’s buttocks two times with his foot. Tillie S. was swimming in neck deep water when defendant came up and reached between her legs, touching her vaginal area. He swam off after Tillie S. kicked him. Rosemary G. was in the water when defendant approached her and grabbed her right breast. Rosemary G. fought defendant off. T.S. was swimming when defendant grabbed her bathing suit bottoms and pulled them down. T.S. also fought defendant off.

On July 16, 1993, the Riverside County District Attorney filed an information charging defendant with seven criminal counts against seven victims: two counts of committing a lewd and lascivious act upon a child under the age of 14 years under Penal Code^[1] section 288, subdivision (a) (counts 1 and 2), and four counts of sexual battery for purposes of sexual gratification under section 243.4, subdivision (d) (counts 3 through 7).

On August 12, 1993, defendant pleaded guilty to counts 1 and 2. Counts 3 through 7 were dismissed. On September 23, 2003, the trial court sentenced defendant to three years’ probation and ordered him to serve 120 consecutive weekend days in county jail.

Twelve years later, on May 3, 2005, defendant filed a writ of coram nobis and motion to withdraw his guilty plea. In his motion, defendant claimed that at the time the court accepted his guilty plea, it failed to advise him, as required by section 1016.5, that the conviction could have the consequence of deportation. Defendant argued this failure automatically entitled him to have his plea vacated.

At the hearing on the motion, based on the “total circumstances involved,” the trial court determined that the sentencing court had advised defendant as to section 1016.5, and denied the motion. In its ruling the court made reference to a declaration submitted by the sentencing judge, Thompson Hanks. Judge Hanks declared that in 1993, it was his custom and practice to advise the defendants that their convictions would possibly subject them to adverse immigration consequences and that he always assured that the defendants understood this fact. The court also noted that the court minutes from the sentencing hearing referenced that defendant was “subject to deportation.” II

DISCUSSION

A. The Trial Court Properly Denied Defendant’s Request to Withdraw his Guilty Plea

Defendant contends the trial court abused its discretion in denying his motion to withdraw his guilty plea.

We review the trial court’s ruling denying the motion to vacate a judgment for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio); see also People v. Suon (1999) 76 Cal.App.4th 1, 4.)

Subdivision (d) of section 1016.5 provides, in pertinent part, that “[t]he Legislature finds . . . that in many instances involving an individual who is not a citizen of the United States charged with an offense punishable as a crime under state law, a plea of guilty or nolo contendere is entered without the defendant knowing that a conviction of such offense is grounds for deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Therefore, it is the intent of the Legislature in enacting this section to promote fairness to such accused individuals by requiring in such cases that acceptance of a guilty plea or plea of nolo contendere be preceded by an appropriate warning of the special consequences for such a defendant which may result from the plea.”

Subdivision (a) of section 1016.5 provides that “[p]rior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant:

If you are not a citizen, you are hereby advised that 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.” (Italics added.)

The statute specifies a remedy for a trial court’s failure to administer the mandated advisements: “If, after January 1, 1978, the court fails to advise the defendant as required by this section and the defendant shows that conviction of the offense to which 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 pursuant to the laws of the United States, the court, on 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.” (§ 1016.5, subd. (b).)

In order to obtain relief under section 1016.5, subdivision (b), a defendant must demonstrate that (1) the court taking the plea failed to advise defendant of the immigration consequences as provided by section 1016.5; (2) as a consequence of his conviction on the offense to which he pleaded guilty, there is more than a remote possibility that defendant faces one or more of the statutorily specified immigration consequences; and (3) defendant was prejudiced by the court’s failure to provide complete advisements under subdivision (a) of section 1016.5. (People v. Totari (2002) 28 Cal.4th 876, 884 (Totari); Zamudio, supra, 23 Cal.4th at pp. 199-200.)

“On the question of prejudice, defendant must show that it is reasonably probable he [or she] would not have pleaded guilty or nolo contendere if properly advised. [Citation.] Whether defendant knew of the potential immigration consequences, despite inadequate advisements at the time of the plea, may be a significant factor in determining prejudice or untimeliness. [Citation.] Thus, in deciding the merits of defendant’s motion to vacate, it may be important for the trial court to determine the factual issue of knowledge.” (Totari, supra, 28 Cal.4th at p. 884, citing Zamudio, supra, 23 Cal.4th at pp. 209-210; see also People v. Murillo (1995) 39 Cal.App.4th 1298, 1305-1306.)

The Supreme Court has also expressly identified another factor as bearing consideration on the question of whether defendant has been prejudiced: whether (had defendant elected to proceed to trial) the outcome of the trial would have been more favorable. (In re Resendiz (2001) 25 Cal.4th 230, 254.) An assertion that defendant “would not have pled guilty if given competent advice ‘must be corroborated independently by objective evidence.’ [Citations.]” (Id. at p. 253 [assessing petitioner’s claim of ineffective assistance of counsel based on counsel’s affirmative misadvice regarding the immigration consequences of his plea].)

In the present matter, assuming the trial court failed to adequately advise defendant of the immigration consequences of his plea, defendant cannot show that he was prejudiced by the court’s misadvisement. In support of his motion to vacate his guilty plea, the defendant filed a declaration stating, “I was not aware that I could be deported, excluded from the United States, or denied naturalization if I pled guilty.

Had I known that I could face deportation, exclusion, or denial of naturalization from the United States by pleading guilty, I would have never pled guilty and would have insisted on a trial.” Defendant went on to state: “My wife and son, who are citizens of the United States, reside with me in Glendale, California. If I am deported, I may never see my family again.”

As a general rule, a self-serving declaration lacks trustworthiness. (People v. Duarte (2000) 24 Cal.4th 603, 611.) The trial court appears to have discredited or given little weight to defendant’s self-serving declaration. As is the case with most evidentiary rulings, determining defendant’s credibility and the evidentiary value of his self-serving declaration is within the trial court’s discretion. (People v. Quesada (1991) 230 Cal.App.3d 525, 533.) On appeal, we will not disturb this determination unless the court abused its discretion. (People v. Greenberger (1997) 58 Cal.App.4th 298, 335.) The court did not abuse its discretion here because its ultimate determination, that defendant suffered no prejudice, was supported by ample evidence.

A number of factors bear on the question of prejudice. One such factor, as stated above, is defendant’s knowledge of the potential immigration consequences, despite inadequate advisements at the time of the plea. (Totari, supra, 28 Cal.4th at p. 878; Zamudio, supra, 23 Cal.4th at pp. 199, 207, 209-210.) Here, the transcript from the hearing wherein defendant pled guilty was not available. However, the trial judge who accepted defendant’s guilty plea, Judge Hanks, declared that it was his practice to advise defendants pleading guilty on the potential immigration ramifications:

“At the time of defendant’s plea[,] it was my practice to orally advise defendants of their rights in compliance with the requirements pursuant to Boykin-Tahl. Further, it was my practice at the time to orally advise defendants that their pleas would possibly subject them to adverse immigration consequences.

. . .

I sentenced the defendant on September 23, 1993, at which time I communicated the terms of probation to him including provisions that a) If expelled or deported, he would not re-enter the United States illegally and b) if he were expelled or deported, the reporting term was to be suspended during the period of expulsion or deportation.”

Judge Hanks went on to state that upon his “urging,” this immigration advisement was later incorporated into the Riverside Superior Court’s felony change-of-plea form.

In addition to the above, defendant’s trial counsel, Chaim Magnum, declared that, although she did not have a specific recollection of defendant’s plea, “it was my practice, in 1993, to indicate to my criminal clients that adverse immigration consequences could occur if they were convicted.”

Therefore, although there is no direct evidence that defendant was advised regarding section 1016.5 because the transcript from the sentencing hearing could not be located, there is evidence from the minute order from the sentencing hearing and the two declarations summarized above that defendant was informed about the possibility of deportation.

Another factor is the probable outcome of the case had defendant not entered the plea he seeks to withdraw. (Cf. In re Resendiz, supra, 25 Cal.4th at pp. 253-254 [claim of ineffective assistance of counsel in failing to advise of immigration consequences].) Here, we find no objective evidence on this record to corroborate defendant’s assertion that he would not have entered the plea had he received an adequate statutory advisement. Corroboration of such claims is required. (Cf. Id. at p. 253.) As noted above, in assessing whether defendant “would have insisted on proceeding to trial had he received competent advice, an appellate court also may consider the probable outcome of any trial, to the extent that may be discerned. [Citations.]” (Id. at p. 254.) Here, defendant was charged with seven felonies -- two counts of committing a lewd and lascivious act upon a child under the age of fourteen years (§ 288, subd. (a)), and five counts of sexual battery for purposes of sexual gratification (§ 243.4, subd. (d)) -- for which he faced the possibility of substantial prison time if convicted. During the preliminary examination, a State of California peace officer testified that defendant groped the vaginal areas, breasts or buttocks of seven female victims, two of whom were minors. Defendant pulled the bathing suit down on at least one victim. Three of the adult victims had to physically fight defendant off. The prosecution’s evidence was strong. Indeed, defendant does not suggest what defenses, if any, he might raise at trial. Additionally, defendant asserts that had he been properly advised, he could have negotiated a guilty plea to the lesser offense of misdemeanor sexual battery and avoided deportation and exclusion; however, considering the strength of the prosecution case and the fact that he was charged with seven felony counts, this was highly unlikely.

In short, though we are mindful that defendant’s wife and son are residing in the United States and acknowledge defendant’s distressing situation, this record discloses no reasonable probability that defendant would have enjoyed a more favorable outcome had he gone to trial on these charges. “The choice, moreover, that [defendant] would have faced at the time he was considering whether to plead, even had he been properly advised, would not have been between, on the one hand, pleading guilty and being deported and, on the other, going to trial and avoiding deportation. While it is true that by insisting on trial [defendant] would for a period have retained a theoretical possibility of evading the conviction that rendered him deportable and excludable, it is equally true that a conviction following trial would have subjected him to the same immigration consequences.” (In re Resendiz, supra, 25 Cal.4th at p. 254.)

Accordingly, defendant has failed to establish prejudice. We therefore conclude the trial court did not abuse its discretion by denying defendant’s statutory motion to vacate the judgment of conviction based on his guilty plea.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ RICHLI

J.

We concur:

/s/ HOLLENHORST

Acting P. J.

/s/ McKINSTER

J

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^[1] All further statutory references will be to the Penal Code unless otherwise indicated.