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P. v. Salazar CA1/3

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P. v. Salazar CA1/3
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12:26:2018

Filed 11/19/18 P. v. Salazar CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS VASQUEZ SALAZAR,

Defendant and Appellant.

A152238

(Sonoma County

Super. Ct. No. SCR-17667)

Defendant Carlos Vasquez Salazar appeals the denial of his motion to vacate his convictions under Penal Code[1] section 1473.7. He contends the court erred in finding that he had not proven, among other things, that he suffered any prejudice as a result of the alleged failure by trial counsel to properly advise him of the immigration consequences of his plea. We find no error and thus must affirm the denial of his motion.

Background

On November 9, 1990, pursuant to a negotiated plea, defendant pled guilty to two counts of selling cocaine (Health & Saf. Code, § 11352). At the plea hearing, defendant was advised that if he was not a citizen of the United States, “conviction of these offenses may cause [him] to be deported, denied admission to the United States or denied naturalization pursuant to the laws of the United States.”

On December 11, 1990, the court imposed a prison term of five years four months, but suspended execution of sentence and granted defendant three years’ formal probation. At the sentencing hearing, trial counsel advised the court that he and defendant had reviewed the probation report. The report indicated that an Immigration and Naturalization Service (INS) investigator had “placed a hold on” defendant and confirmed that he was “definitely deportable.” The investigator also advised the probation department that “new immigration rules designate drug sales as an ‘aggravated felony,’ ” meaning “neither amnesty nor a judicial recommendation against deportation will prevail against deportation proceedings.” The probation report further stated that defendant’s “imminent deportation” would “render probation pointless.” At the hearing, the trial court expressed its concern about “what the probation officer says about the deportability aspect, that INS apparently has a hold on the defendant and apparently under their rules designate drug sales as an aggravated felony and may move to . . . deport him.” In response, the probation officer indicated that if defendant were deported while on probation and consequently unable to meet the terms of his probation, he would be in violation of those terms. Despite the concerns raised regarding deportation, when asked whether he had “any questions at all,” defendant answered “No, no questions.”

At the time of his convictions, defendant was 22 years old and he had lived in the United States for approximately six years while his parents and siblings remained in Mexico. Since then defendant successfully completed his probation and he has had no further criminal convictions. In 1997, he married a United States citizen and they had two children, both of whom are now adults. He has worked for the last 30 years as a landscaping contractor.

On August 15, 2011, defendant filed a motion to vacate his convictions. He argued (1) that his counsel provided ineffective assistance by failing to advise him that deportation was “virtually mandatory,” citing Padilla v. Kentucky (2010) 559 U.S. 356; (2) that the court should vacate his conviction “in its discretion and the interest of justice” under section 1203.4;[2] and (3) that he was not properly advised of the immigration consequences of his guilty plea in accordance with section 1016.5.[3] Defendant attached a declaration, claiming he “had no idea” that he would be subject to deportation and would not have pleaded guilty had he known. The court denied the motion on the grounds that the trial court had complied with the requirements of section 1016.5 and that defendant’s ineffective assistance of counsel claim was procedurally defective. The court also observed that even if it had the authority to vacate the judgment based on a finding of ineffective assistance of counsel, it would not do so because defendant failed to establish prejudice. The court explained that the record demonstrates that the trial court and the probation report made it clear that defendant “was facing the certainty of deportation” and that defendant’s “failure to speak up at the sentencing hearing undermines his current assertion that he would not have entered the plea had he known of the actual immigration consequences of the plea.”

On February 24, 2017, defendant filed the present motion to vacate his convictions under section 1473.7. He argued that as a result of his trial counsel’s failure to explain the immigration consequences of a guilty plea, he failed to meaningfully understand the immigration consequences of his convictions. In support of his motion, defendant submitted a declaration, as well as declarations from his trial counsel, his immigration counsel, and his wife. In his declaration, defendant claimed that his trial counsel did not explain other options or the immigration consequences of a guilty plea, and that he would not have pleaded guilty had he known he would be deported. He writes, “A Public Defender was assigned to me. I remember only seeing him twice while I was detained, and we spoke briefly. In the meantime, I did consult with a private attorney while in custody. The private counsel told me that I could get a plea with less jail time, but that I would be deported after completing the sentence. I didn’t take the offer because I wanted to remain in the USA, even if that meant serving more time in jail. I didn’t understand much of the legalities but I knew that I wasn’t willing to risk deportation. [¶] As I was ultimately represented by the public defense attorney, I agreed to what that counsel advised. I was advised to take the plea and we never talked about immigration consequences of any kind. In contrast to the other attorney I had consulted, the plea offered by the public defense counsel did not come with any admonishment about immigration consequences so I assumed there would be no consequences.” Defendant’s trial counsel, in his declaration, stated that he had “no current memory” of defendant or his case, nor did he remember whether he advised defendant regarding possible immigration consequences. He also stated that the notes in the case file did not indicate whether immigration consequences had been discussed.

The court denied the motion, explaining that “both the pre-sentence report and the trial court at the sentencing hearing made it clear to Mr. Salazar that he was facing deportation,” and that his conduct at the sentencing hearing “demonstrates that he was satisfied with the plea agreement despite the actual deportation consequences that were made known and clear to him, both by probation and the trial court statement at sentencing.” The court noted that defendant did not “speak up or object to the sentencing going forward on the grounds that the immigration consequences were either a surprise to him or that he didn’t agree with them or that he no longer wanted to plead guilty in light of the immigration consequences.”

Defendant timely appealed.

Discussion

Section 1473.7 authorizes “[a] person no longer imprisoned or restrained” to move to vacate a conviction or sentence where 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.” (§ 1473.7, subd. (a)(1).) “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.” (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75.)

To establish ineffective assistance of counsel, a defendant must demonstrate that his counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and that he was prejudiced by the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.) In this case, we need not determine whether trial counsel’s performance was deficient because even assuming that counsel’s advice regarding the immigration consequences of his plea was deficient, the record does not establish that defendant was prejudiced by the error. (Id. at p. 697 [“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.]”)

To establish prejudice, a defendant must establish that “a reasonable probability exists that, but for counsel’s incompetence, he would not have pled guilty and would have insisted, instead, on proceeding to trial.” (In re Resendiz (2001) 25 Cal.4th 230, 253, overruled on another ground in Padilla v. Kentucky, supra, 559 U.S. at pp. 370-371; People v. Martinez (2013) 57 Cal.4th 555, 564; see also Lee v. United States (2017) __ U.S. __, __ [137 S.Ct. 1958, 1965] [“[W]hen a defendant claims that his counsel's deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a ‘reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.’ ”].) In Lee, the court concluded that reversal was warranted under the “unusual circumstances” presented in that case, but advised that courts “should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.” (Lee v. United States, supra, at p. __ [137 S.Ct. at p. 1967]; see also In re Resendiz, supra, 25 Cal.4th at p. 253 [A “petitioner’s assertion he would not have pled guilty if given competent advice ‘must be corroborated independently by objective evidence.’ ”].)

Here, defendant’s failure to express any concern following his review of the probation report is compelling evidence that he would not have changed his plea had he received additional advice from his attorney before he entered his plea. While defendant is correct that the post-plea information is not sufficient to cure any deficiency in trial court’s advice, it is relevant to whether defendant suffered prejudice as a result of any inadequacies in the pre-plea advice. The probation report prepared at the time of sentencing also supports the conclusion that defendant’s primary objective in taking the plea was avoiding jail time. The report reads: “To the undersigned, defendant stated, ‘It was stupid; I’m stupid. All I need is a chance, just one chance. I don’t want to go to prison. It won’t happen again. I won’t do drugs anymore, I’m tired of that stuff. I’ve never been in trouble before or been to jail. Go ahead and give me prison suspended; four, five, six years. If I fail, send me.’ ” Accordingly, while the relevance of the immigration consequences of his plea has undoubtedly increased in the intervening years as defendant married and settled into a life here, the record directly conflicts with the statements in his declaration that he was willing to take additional jail time to avoid the risk of deportation.

Contrary to defendant’s argument, the court did not require him to show, as a prerequisite to relief under section 1473.7, that “an alternate, immigration-safe plea” was available. The court merely found, in rejecting defendant’s claim that his trial counsel’s performance was deficient, that there was no evidence in the record “that the prosecutor would have been amenable to an alternative plea agreement.” In any event, even assuming that the failure to attempt to negotiate an immigration-safe plea was deficient, for the reasons discussed above, defendant cannot establish prejudice. Defendant’s claim that he would have “pled up” and negotiated a “higher sentence” in exchange for a plea that avoided deportation directly conflicts with the record.

Finally, the trial court did not “blatantly conflate[] the cursory immigration advisal that is required to be given by the court in a § 1016.5 motion with the in-depth responsibility that is placed on defense counsel with a § 1473.7 motion.” The court stated, “[Y]ou are claiming that your trial counsel . . . failed to advise you of the actual immigration consequences of your plea and you have alleged that you would have rejected that plea had you been adequately advised. I note that in 2011 the same motion was made to vacate the conviction on the same grounds and the motion was denied by the trial court in a written ruling October 28th, 2011. There is a new statute here so the court can consider the issue again, . . . ut the case law on ineffective assistance of counsel requires the same showing . . . . We have to have deficient performance and prejudice.” The court correctly noted that defendant made a nearly identical ineffective assistance of counsel claim in 2011 when he argued that his attorney was deficient in failing to advise him of the immigration consequences of his plea. While defendant also asserted a section 1016.5 claim in 2011, nothing in the court’s comments above suggests that the court conflated that claim with his present claim based on his trial attorney’s alleged ineffective assistance of counsel.

We are not unmindful of the dreadful consequences to defendant and his family threatened by his deportation, and the positive factors in his conduct in the intervening 28 years since his conviction that undercuts the need or justification for such drastic action. One would hope federal authorities would be sensitive to those factors as well. However, this court has no authority to regulate the federal agencies and can do no more than ensure that California law is properly applied.

[b]Disposition

The order denying defendant’s motion under section 1473.7 is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

Siggins, P.J.

_________________________

Ross, J.*


[1] All statutory references are to the Penal Code unless otherwise noted.

[2] Section 1203.4, subdivision (a) authorizes a court, in the interests of justice, to expunge the record of a successful probationer. Defendant, recognizing that expungement alone would not prevent his deportation, asked the court to “go beyond 1203.4(a) relief and actually vacate the judgment and set aside the conviction.”

[3] Section 1016.5, subdivision (a) requires the trial court to read the following admonition to a defendant prior to acceptance of a plea of guilty or nolo contendere: “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.” Under subdivision (b) of section 1016.5, “If . . . 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.”

* Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.





Description Defendant Carlos Vasquez Salazar appeals the denial of his motion to vacate his convictions under Penal Code section 1473.7. He contends the court erred in finding that he had not proven, among other things, that he suffered any prejudice as a result of the alleged failure by trial counsel to properly advise him of the immigration consequences of his plea. We find no error and thus must affirm the denial of his motion.
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