People v. Gonzalez

Filed 9/27/18

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D073436

Plaintiff and Respondent,

v. (Super. Ct. No. SCS152019)

PABLO GONZALEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Theodore M.

Weathers, Judge. Affirmed.

Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,

Seth M. Friedman and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and

Respondent.

In August 2000, Pablo Gonzalez pled guilty to possession for sale of marijuana.

(Health & Saf. Code, §11359.) The trial court sentenced Gonzalez to 74 days in custody
and three years' summary probation. After serving his 74 days in custody, Gonzalez was

deported in October 2000. Gonzalez reentered the United States about a year later. He

subsequently was convicted of possession of a controlled substance for sale (Health &

Saf. Code, § 11378), criminal threats (Pen. Code,1 § 422), and domestic battery (§ 243,

subd. (e)). In June 2002, Gonzalez was deported again. He reentered the United States,

but was deported yet again in April 2017.

On January 1, 2017, section 1473.7 became effective. That statute allows a person

no longer imprisoned or restrained to move to vacate a conviction or sentence for one of

two reasons, including that "[t]he conviction or sentence is legally invalid 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 plea of guilty or nolo contendere." (§ 1473.7, subd. (a)(1).) In August 2017, Gonzalez

moved to vacate his 2000 conviction under section 1473.7. After an evidentiary hearing,

the superior court denied Gonzalez's motion.

Gonzalez appeals, contending the court erred in denying his motion under section

1473.7. Specifically, he claims he established prejudicial error based on his counsel's

failure to adequately advise him of the immigration consequences of his plea and failure

to seek an immigration safe alternative disposition. We conclude Gonzalez's arguments

lack merit. As such, we affirm.

1 Statutory references are to the Penal Code unless otherwise specified.

2
 FACTUAL AND PROCEDURAL BACKGROUND

Guilty Plea

In July 2000, Gonzalez was arrested after crossing the border in a vehicle

containing 74 pounds of marijuana. He was charged with transportation of marijuana

(Health & Saf. Code, § 11360) and possession of marijuana for sale (Health & Saf. Code,

§ 11359).

Gonzalez ultimately pled guilty to possession of marijuana for sale at a hearing on

July 26, 2000 at his arraignment in the high intense drug trafficking area court. At that

hearing, two other defendants were present. The court asked the defendants if they could

read and understand English. Gonzalez responded in the affirmative. The court then

informed the defendants of the potential immigration consequences of a guilty plea:

"Each of you should understand if you're not citizens of the United States, your guilty

plea will affect your status in this country. And it will result in the departure, denial of

citizenship or exclusion."2

The court also asked Gonzalez if he read and understood his change of plea form.

Gonzalez answered, "Yes." Gonzalez's change of plea form appears in the record. As

2 The parties quibble about the court's use of the word "departure." The People
claim the court misspoke or the court reporter transcribed the wrong word. To this end,
the People assert the court either meant or actually said "deportation" instead of
"departure." Gonzalez counters there is no evidence to support the conclusion that the
appearance of the word "departure" in the reporter's transcript is scrivener's error. This
disagreement is immaterial to our analysis here.

3
pertinent here, the form states: "I understand that if I am not a citizen of the United

States a plea of Guilty or No Contest can or will result in removal or deportation,

exclusion from admission to this country, and denial of naturalization." Gonzalez's

initials appear in the box next to that statement.

The form also contained the following statement signed by Gonzalez's attorney:

"I am the attorney for the defendant in the above-entitled case. I
personally read and explained to the defendant the entire contents of
this plea form and any addendum thereto. I discussed all charges
and possible defenses with the defendant, and the consequences of
this plea. I personally observed the defendant fill in and initial each
item, or read and initial each item to acknowledge his/her
understanding and waivers. I observed the defendant date and sign
this form and any addendum. I concur in the defendant's plea and
waiver of constitutional rights."

The court subsequently sentenced Gonzalez to custody for 74 days and placed him

on probation for three years. After serving his time in custody, Gonzalez was deported

on October 6, 2000.

The Motion to Vacate

On August 29, 2017, Gonzalez filed a motion to vacate conviction based on

section 1473.7. In his motion, Gonzalez argued that (1) his counsel violated the duty to

investigate and accurately advise him about the specific immigration consequences of a

plea and (2) his counsel failed to defend against immigration consequences of a plea

because he did not attempt to plea bargain for an immigration safe alternative disposition.

4
 Among other material submitted in support of his motion, Gonzalez submitted a

self-declaration. In that declaration, Gonzalez stated that he believed he would have the

opportunity to challenge his deportation even if he pled guilty. He also declared that, at

the time he pled guilty, his "English was not very good[,]" which lead to

"confusion/misunderstanding." Gonzalez did not remember talking to a lawyer or

speaking to anyone in Spanish. He also claimed that he does not recall if anyone told him

that he would be deported if he pled guilty. Gonzalez represented that had he been told

of the deportation consequences of pleading guilty, he would have "fought" his case and

let his "lawyer try for a better deal or to win the case."

The People opposed Gonzalez's motion, contending Gonzalez could not prove by a

preponderance of the evidence that there was a prejudicial error damaging his ability to

meaningfully understand, defend against, or knowingly accept the actual or potential

adverse immigration consequences of a guilty plea.

At the hearing on Gonzalez's motion, Gonzalez's counsel offered the testimony of

two witnesses: Jose Luis Guerrero and Leticia Gonzalez (Leticia).

Guerrero, who was a deputy public defender at the time, represented Gonzalez

when he pled guilty. Guerrero had no independent recollection of Gonzalez's case.

However, after reviewing his office's case management system, he acknowledged that it

appeared he had been assigned Gonzalez's case in 2000. Guerrero stated that, in 2000, a

criminal defense attorney would provide a defendant with a standard immigration advisal,

5
but would not consider the immigration consequences of a particular crime. Guerrero

testified that he would have provided Gonzalez with immigration advice like what was

outlined on the change of plea form at that time. Guerrero explained that a defense

counsel's approach to advising a criminal defendant of immigration consequences

changed in 2010 after the United States Supreme Court issued its decision in Padilla v.

Kentucky (2010) 559 U.S. 356 (Padilla). After that case, the Office of the Public

Defender began training its attorneys regarding the immigration consequences relating to

the charged crimes.

For example, after Padilla, supra, 559 U.S. 356, the Office of the Public Defender

would instruct its attorneys that a defendant who has a permanent record should plead not

guilty at the initial arraignment so the attorney can investigate the immigration

consequences and then try to obtain a more favorable disposition (relating to immigration

if applicable). Additionally, Guerrero confirmed that in 2000, the Office of the Public

Defender had no specific policy with respect to how immigration consequences should be

investigated or handled. At that time, the custom was for an attorney to advise a

defendant consistent with the language on the change of plea form. Guerrero explained it

was his practice to review the change of plea form with a defendant and make sure the

defendant understood each section before initialing and signing the form.

Also, Guerrero testified that he had no reason to believe that Gonzalez was told

anything regarding the immigration consequences of pleading guilty beyond what was

6
contained in the change of plea form. Guerrero noted that Gonzalez's pretrial services

form indicated that an immigration hold existed. Guerrero explained that the

immigration hold would have alerted him to the fact that Gonzalez was not a citizen, and

thus, he would have advised Gonzalez about the immigration consequences as set forth in

the change of plea form. Guerrero stated that he would tell a group of defendants that an

immigration hold indicates that a defendant could be deported if he or she pled guilty.

Then, on an individual basis, Guerrero would have informed Gonzalez that he would be

deported if he pled guilty.

Guerrero stated that he did not believe Gonzalez had much of a defense because he

confessed. As such, Guerrero considered the offer from the prosecutor was the best one

Gonzalez would receive.

Leticia, Gonzalez's wife, also testified at the hearing on Gonzalez's motion to

vacate. Gonzalez explained that at the time of Gonzalez's arrest, they had twins, who

were suffering from a variety of ailments and needed frequent medical attention. The

income Gonzalez was earning at the time was essential to the well-being of his family

because Leticia was not working.

Leticia stated that she attempted multiple times since Gonzalez was arrested to

secure legal assistance to help with immigration issues. However, no attorney would

help. To the extent an attorney responded to Leticia's request for representation, the

attorney would inform Leticia there was nothing to be done for Gonzalez. Only after

7
Gonzalez was deported in April 2017 did an attorney tell Leticia there was a chance she

could fight Gonzalez's deportation.

Leticia testified that she would have supported a longer custody period in 2000 if

it allowed Gonzalez an opportunity to stay in the United States legally.

Leticia admitted that, in 2002, Gonzalez was convicted of possession of

methamphetamine for sale, criminal threats, and domestic violence. He then was

deported shortly after his conviction.3

The parties stipulated that, if called to testify, Gonzalez would state that he would

not have pled guilty in this case had he known he was pleading to an aggravated felony

guaranteeing his deportation to Mexico with no avenue for relief.

After hearing the witnesses' respective testimony, the court permitted counsel to

argue the matter. In addition to emphasizing Gonzalez's family situation, Gonzalez's

counsel stated that Gonzalez did not appreciate or understand the consequences of

pleading guilty. He pointed out that Gonzalez was told he would be deported, but he was

not informed that he would be permanently barred from reentering the United States and

would never be able to become a citizen. Counsel argued that it was reasonably probable

that, if Gonzalez understood the immigration consequences of pleading guilty, he would

not have done so. Gonzalez's counsel also maintained that in representing Gonzalez,

3 Gonzalez was deported on or about June 26, 2002.

8
Guerrero had the obligation to try to secure a better immigration consequence for

Gonzalez.

The prosecutor argued that Gonzalez was properly informed of the immigration

consequences of his guilty plea. She also asserted that Gonzalez had not satisfied the

evidentiary requirements under section 1473.7.

The court denied the motion. In doing so, the court stated that it found Guerrero's

testimony "more than credible." The court determined that Guerrero informed Gonzalez

on at least two occasions, once in a group setting and another individually, that he would

be deported. The court also noted that the change of plea form expressed that a plea of

guilty would " 'result in removal, deportation or exclusion from admission to this country,

and a denial of naturalization.' " The court found Gonzalez understood that if he pled

guilty, then he would be deported. In addition, the court determined that count 2, which

the prosecution dismissed under the plea agreement, carried a four-year sentence and was

a factor defense counsel would have considered in negotiating a plea agreement.

DISCUSSION

Section 1473.7, subdivision (c) provides: "A person no longer imprisoned or

restrained may prosecute a motion to vacate a conviction or sentence" for one of two

reasons, including that "[t]he 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

9
guilty or nolo contendere." (§ 1473.7, subd. (a)(1).) The motion must be made with

"reasonable diligence" after the party receives notice of pending immigration proceedings

or a removal order. (§ 1473.7, subd. (b).) The court must hold a hearing on the motion,

and if the moving party establishes by a preponderance of the evidence that he or she is

entitled to relief, the court must allow the person to withdraw his or her plea. (§ 1473.7,

subd. (e).)4

4 In full, section 1473.7, states: "(a) A person no longer imprisoned or restrained
may prosecute a motion to vacate a conviction or sentence for either of the following
reasons: [¶] (1) 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. [¶] (2) Newly discovered evidence of actual innocence exists
that requires vacation of the conviction or sentence as a matter of law or in the interests
of justice. [¶] (b) A motion pursuant to paragraph (1) of subdivision (a) shall be filed
with reasonable diligence after the later of the following: [¶] (1) The date the moving
party receives a notice to appear in immigration court or other notice from immigration
authorities that asserts the conviction or sentence as a basis for removal. [¶] (2) The date
a removal order against the moving party, based on the existence of the conviction or
sentence, becomes final. [¶] (c) A motion pursuant to paragraph (2) of subdivision (a)
shall be filed without undue delay from the date the moving party discovered, or could
have discovered with the exercise of due diligence, the evidence that provides a basis for
relief under this section. [¶] (d) All motions shall be entitled to a hearing. At the request
of the moving party, the court may hold the hearing without the personal presence of the
moving party if counsel for the moving party is present and the court finds good cause as
to why the moving party cannot be present. [¶] (e) When ruling on the motion: [¶]
(1) The court shall grant the motion to vacate the conviction or sentence if the moving
party establishes, by a preponderance of the evidence, the existence of any of the grounds
for relief specified in subdivision (a). [¶] (2) In granting or denying the motion, the court
shall specify the basis for its conclusion. [¶] (3) If the court grants the motion to vacate a
conviction or sentence obtained through a plea of guilty or nolo contendere, the court
shall allow the moving party to withdraw the plea. [¶] (f) An order granting or denying
the motion is appealable under subdivision (b) of Section 1237 as an order after judgment
affecting the substantial rights of a party."

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 Here, Gonzalez appeals the denial of his section 1473.7 motion. As a threshold

matter, the parties disagree regarding the applicable standard of review. Gonzalez urges

us to follow People v. Ogunmowo (2018) 23 Cal.App.5th 67 (Ogunmowo) and apply a de

novo review, including making independent findings of fact. The People contend

Ogunmowo was wrongly decided and assert an abuse of discretion is the proper standard.

In Ogunmowo, the court held "[d]e novo review is the appropriate standard for a

mixed question of fact and law that implicates a defendant's constitutional right."

(Ogunmowo, supra, 23 Cal.App.5th at p. 76.) Such a pronouncement is not controversial.

(See People v. Cromer (2001) 24 Cal.4th 889, 894 [courts use independent, de novo

review for mixed questions of fact and law that implicate constitutional rights].)

However, the court in Ogunmowo implicitly suggested that an appellate court, on direct

appeal, can make independent findings of fact, especially when the trial court makes

factual findings based on declarations. (Ogunmowo, supra, at p. 79 [concluding the trial

court's factual determination was not entitled to deference because it was based on

statements made in declarations]; ibid. ["The trial court and this court are in the same

position in interpreting written declarations."].) The court based this conclusion on In re

Resendiz (2001) 25 Cal.4th 230 (Resendiz). Yet, that case did not involve a direct appeal,

but was an original proceeding (petition for writ of habeas corpus). Our high court noted

that where the superior court denied habeas corpus relief after an evidentiary hearing and

a new habeas petition was filed with the Court of Appeal, the appellate court is not bound

11
by the factual determinations made below, but independently evaluates the evidence and

makes its own factual determinations. (Id. at p. 249.) Nevertheless, even in the context

of a habeas petition, the court observed that factual determinations made below " 'are

entitled to great weight . . . when supported by the record, particularly with respect to

questions of or depending upon the credibility of witnesses the [superior court] heard and

observed.' " (Ibid.)

Here, we are not faced with a petition for writ of habeas corpus. Thus, we do not

find Resendiz, supra, 25 Cal.4th 230 helpful in establishing the appropriate standard of

review. Further, to the extent that the court in Ogunmowo, supra, 23 Cal.App.5th 67

relied on Resendiz to conclude that it could make independent factual findings on a direct

appeal, we do not find the court's reasoning persuasive. And Gonzalez does not cite to

any other case where a court determined that an appellate court should make independent

factual findings when addressing an appeal from an order denying a change of plea.

A decision to deny a motion to withdraw a guilty plea rests in the sound discretion

of the court. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) However, we are

mindful that such a motion based on a claim of ineffective assistance of counsel

implicates a constitutional right. This is not unique to motions to withdraw guilty pleas.

For example, an appellate court reviews a trial court's denial of a motion for new trial for

an abuse of discretion. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151.) Yet, in

cases in which a trial court denies a motion for new trial raising ineffective assistance of

12
counsel claims, we uphold the trial court's factual findings if they are supported by

substantial evidence and we exercise our independent judgment on the legal issues. (See,

e.g., People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.) These "differing" standards

of review are easily reconciled. A trial court may be found to have abused its discretion

on the issue of ineffective assistance of counsel if its factual findings are not supported by

substantial evidence or if it misinterprets or misapplies the applicable legal standard.

This is the standard we shall apply here.

A defendant who seeks to vacate a conviction on a claim of ineffective assistance

of counsel must establish two things: (1) counsel's performance was deficient in that it

fell below an objective standard of reasonableness and (2) he or she was prejudiced by

that deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688

(Strickland).) Section 1473.7, under which this action was brought, seemingly codifies

this requirement by placing the burden on the defendant to establish cause for relief by a

preponderance of the evidence. (§ 1473.7, subd. (e).) Although existing case law does

not use the phrase "preponderance of the evidence" in its formulation of the test for

ineffective assistance of counsel, section 1473.7's requirements essentially track the

showings that were required prior to the enactment of section 1473.7. (See In re Cordero

(1988) 46 Cal.3d 161, 180.)

Here, Gonzalez maintains if Guerrero advised him consistent with the change of

plea form, Guerrero's advice would have been "constitutionally deficient." To this point,

13
he relies on a pair of federal cases: Padilla, supra, 559 U.S. 356 and United States v.

Rodriguez-Vega (9th Cir. 2015) 797 F.3d 781 (Rodriguez-Vega). Neither case supports

Gonzalez's position here.

In Padilla, supra, 559 U.S. 356, the United States Supreme Court addressed what

constitutes deficient performance under the Strickland test with respect to advising a

defendant on the deportation consequences of pleading guilty. In that case, the

defendant, a lawful permanent resident, pled guilty to drug charges involving the

transportation of a large amount of marijuana in his tractor trailer. The court noted the

defendant's "crime, like virtually every drug offense except for only the most

insignificant marijuana offenses, is a deportable offense under 8 U.S.C.

§ 1227(a)(2)(B)(i)." (Padilla, supra, at p. 359, fn. 1.) However, before he pled guilty,

the defendant's counsel did not advise him of the immigration consequences of his plea,

and in fact, told him he " ' "did not have to worry about immigration status because he

had been in the country so long." ' " (Id. at p. 359.) The court explained:

"In the instant case, the terms of the relevant immigration statute are
succinct, clear, and explicit in defining the removal consequence for
Padilla's conviction. [Citation.] . . . Padilla's counsel could have
easily determined that his plea would make him eligible for
deportation simply from reading the text of the statute, which
addresses not some broad classification of crimes but specifically
commands removal for all controlled substances convictions except
for the most trivial of marijuana possession offenses. Instead,
Padilla's counsel provided him false assurance that his conviction
would not result in his removal from this country. This is not a hard
case in which to find deficiency: The consequences of Padilla's plea
could easily be determined from reading the removal statute, his

14
 deportation was presumptively mandatory, and his counsel's advice
was incorrect." (Id. at pp. 368-369.)

The court determined that to provide effective assistance of counsel, "counsel must

inform her client whether his plea carries a risk of deportation." (Padilla, supra,

559 U.S. at p. 374.)

In Rodriguez-Vega, supra, 797 F.3d 781, the Ninth Circuit, following Padilla,

concluded where a defendant's conviction of a removable offense renders deportation

"practically inevitable," counsel is required to advise his or her client that the "conviction

rendered [his or her] removal virtually certain, or words to that effect," advising of a

possibility is not sufficient. (Id. at pp. 786-787, 790.) In other words, "where the law is

'succinct, clear, and explicit' that the conviction renders removal virtually certain, counsel

must advise his client that removal is a virtual certainty." (Id. at p. 786, quoting Padilla,

supra, 559 U.S. at pp. 368-369.)

The instant matter is not analogous to Padilla, supra, 559 U.S. 356 or Rodriguez-

Vega, supra, 797 F.3d 781. Unlike Padilla, Guerrero did not advise Gonzalez that he did

not have to worry about the immigration consequences of pleading guilty. Nor did

Guerrero run afoul of Rodriquez-Vega. Below, the superior court found that Guerrero

told Gonzalez twice that he would be deported if he pled guilty. Substantial evidence

supports this finding.

In addition to finding Padilla, supra, 559 U.S. 356 and Rodriguez-Vega, supra,

797 F.3d 781 factually distinguishable from the instant matter, we also conclude they are

15
not instructive here because Gonzalez pled guilty almost 10 years before the opinion in

Padilla was issued. Before Padilla, the immigration ramifications of guilty or no contest

pleas were generally considered indirect or " 'collateral' " consequences of those pleas,

about which a defendant need not be advised. (People v. Superior Court (Zamudio)

(2000) 23 Cal.4th 183, 198; People v. Limones (1991) 233 Cal.App.3d 338, 344.)

Therefore, failure to advise a defendant about those ramifications could not support a

claim of ineffective assistance of counsel under the first prong of the Strickland analysis

because such a failure did not fall below a general standard of reasonableness.

Padilla, supra, 559 U.S. 356 changed this as explained in Chaidez v. United States

(2013) 568 U.S. 342 (Chaidez). In that case, the United States Supreme Court explained

that Padilla had had the effect of suddenly changing the nature of immigration issues

from being "collateral consequences" of pleas to something unique, roughly akin to direct

consequences. (Chaidez, supra, at p. 349.) The United States Supreme Court concluded

that Padilla had created a new affirmative obligation on trial counsel to understand and

accurately explain the immigration consequences of a plea to a defendant before the entry

of that plea where no such duty had existed before. This rule was not based on prevailing

professional standards but, rather, on a determination that immigration consequences

were potentially so profound that trial counsel had an obligation to accurately advise their

clients about them. (Chaidez, supra, at p. 353.) Therefore, the court in Chaidez held

that, under the rules set out in Teague v. Lane (1989) 489 U.S. 288, the Padilla opinion

16
could not be applied retroactively to cases that were final at the time the opinion in

Padilla was issued. (Chaidez, supra, at pp. 344, 358.)

As such, Guerrero had no affirmative obligation, under Padilla, supra, 559

U.S. 356, to advise Gonzalez of the immigration consequences of his plea at the time that

plea was taken. That said, Guerrero did advise Gonzalez that he would be deported if he

pled guilty. However, Gonzalez insists that was insufficient because: (1) Guerrero had

the obligation to advise Gonzalez that a guilty plea also would result in his exclusion

from the United States and the denial of naturalization; and (2) Guerrero had the

obligation to negotiate a more immigration favorable plea. Gonzalez nevertheless does

not provide any authority that required Guerrero, in August 2000, to provide this type of

advice or negotiate this kind of plea. As such, Guerrero's representation of Gonzalez did

not fall below the then-contemporary reasonable objective standard of practice. Thus,

Gonzalez has failed to satisfy the first prong of the Strickland test and his claim of

ineffective assistance of counsel must fail.

Perhaps in recognition that Padilla, supra, 559 U.S. 356 does not apply

retroactively to his case, Gonzalez also argues that California imposed an independent

pre-Padilla duty on trial counsel to inform their clients of the immigration consequences

of their pleas. This argument is unavailing.

Gonzalez's reliance on recently enacted sections 1016.2 and 1016.3, which were

intended to codify both the Padilla requirements and any existing California decisional

17
law, is misplaced. These provisions cannot apply to the instant matter for two reasons.

First, these statutes, which were added in 2015 by Assembly Bill No. 1343 (2015-2016

Reg. Sess.), were, by their terms, enacted to codify the Padilla ruling (§ 1016.2,

subd. (h)). This would include the restriction on retroactivity, which occurred in 2013 in

Chaidez, supra, 568 U.S.342, under the familiar rule that the Legislature is presumed to

be aware of decisional law and to have enacted statutes considering that decisional law.

(People v. Giordano (2007) 42 Cal.4th 644, 659.)

Second, section 3 creates a strong presumption that changes to the Penal Code are

to be applied prospectively only, unless it is " 'very clear' " from either the language of

the statute or extrinsic sources that the Legislature intended retroactive application.

(People v. Brown (2012) 54 Cal.4th 314, 324.) Sections 1016.2 and 1016.3 contain no

such statement of legislative intent and, given section 1016.2's repeated references to the

Padilla decision (559 U.S. 356), it is clear that the Legislature did not intend that sections

1016.2 and 1016.3 apply retroactively. Moreover, we find it telling that, although

Gonzalez cites to sections 1016.2 and 1016.3 as support for his position here, he offers no

argument that those statutes should be applied retroactively.

Similarly, we conclude Gonzalez's reliance on People v. Soriano (1987) 194

Cal.App.3d 1470, People v. Barocio (1989) 216 Cal.App.3d 99 (Barocio), and People v.

Bautista (2004) 115 Cal.App.4th 229 (Bautista) is misplaced. In Soriano, the defendant

claimed that he asked his attorney if he would be deported if he pled guilty. The attorney

18
responded in the negative. Subsequently, the defendant asked his attorney whether a

guilty plea would prohibit him from obtaining citizenship. The attorney responded that it

would not and reiterated that he would not be deported. (Soriano, supra, at p. 1478.)

The defendant's attorney asserted that she told her client that he " 'could' " be deported if

he pled guilty. (Id. at p. 1479.) The court concluded the attorney's advice was erroneous

and counsel had undertaken no effort to obtain accurate information, despite being asked

about the immigration consequences of a guilty plea. (Id. at p. 1482.) The court

determined that this erroneous advice constituted ineffective assistance of counsel

because, when asked, trial counsel had an obligation to research further and provide

accurate information. (Ibid.) However, Soriano did not establish that defense counsel

had a duty to research and advise the defendant of his immigration consequences.

Instead, it stands for the proposition that when asked by a client about the immigration

consequences of a plea, the attorney has an obligation to obtain correct information and

advise the client based on that information. Here, there is no indication in the record that

Gonzalez asked his counsel repeatedly, let alone once, about the immigration

consequences of a guilty plea.

Barocio, supra, 216 Cal.App.3d 99, similarly did not create an independent pre-

Padilla duty to advise defendants of immigration consequences of their pleas. In that

case, the defendant's trial attorney failed to seek a judicial recommendation against

deportation. (Barocio, supra, at p. 103.) There was no issue about counsel's advice to

19
the defendant. Indeed, the court in Barocio specifically concluded that while section

1016.5 imposed a duty on the court to warn of the possible immigration consequences of

a plea, counsel had no corresponding duty because immigration concerns were "collateral

consequence[s]" of the plea. (Barocio, supra, at pp. 107-108.) The only deficiency

found in Barocio was trial counsel's failure to advise the defendant of the right to a

recommendation against deportation. (Id. at pp. 109-110.) The case was remanded to the

trial court for resentencing to allow counsel to confer with his client regarding requesting

a judicial recommendation against deportation and carry out the client's wishes. (Id. at

p. 111.) Gonzalez makes no similar complaint here.

Finally, we conclude that Bautista, supra, 115 Cal.App.4th 229 is not helpful to

Gonzalez. The evidence in Bautista showed that the defense attorney's strategy was

simply to bargain for "the most lenient sentence possible." (Id. at p. 238.) However, an

immigration attorney provided a declaration as an expert witness that in at least five cases

in which he was personally involved, the prosecutor agreed to allow a defendant charged

with drug sales to " 'plead upward,' " defined as pursuing a negotiated plea for a violation

of a greater offense that would carry a longer prison sentence but not result in

deportation. (Ibid.) The defense attorney never contemplated such a strategy. (Ibid.)

And the expert witnesses opined that the defense attorney's representation of the

defendant fell below objective standards of reasonableness. (Id. at pp. 239-240.) The

appellate court issued an order to show cause to the trial court for a reference hearing to

20
take evidence and resolve factual issues relating to defense counsel's legal advice at the

time of the defendant's guilty plea. (Id. at p. 242.) In contrast, Gonzalez has presented

no evidence that a more immigration favorable disposition was available in his case. Nor

did he offer an expert opinion that Guerrero's representation of him fell below an

objective standard of reasonableness at the time Gonzalez pled guilty. Moreover, there is

no suggestion in Bautista that trial counsel had a pre-Padilla duty to research and explain

immigration consequences to their clients.

In summary, this case highlights the difficulties of a motion under section 1473.7

challenging a guilty plea that was made almost 20 years earlier. Gonzalez's declaration

contains little helpful information as he does not recall what advice he received. He does

not claim that he asked his attorney about the immigration consequences of his plea. He

does not assert that his attorney provided him incorrect advice about the immigration

consequences of his plea. Gonzalez does not offer any evidence that a more immigration

favorable plea was available to him in August 2000. There is no indication that Gonzalez

asked his attorney to obtain such a plea. Although Gonzalez's attorney, Guerrero, does

not have any independent recollection regarding representing Gonzalez, Guerrero

testified to what his practices were in August 2000 and what he was likely to have done.

According to Guerrero, he would have advised Gonzalez at least twice that he would be

deported if he pled guilty. The superior court found Guerrero very credible. Gonzalez

offers no evidence to contradict Guerrero's testimony. On the record before us, Gonzalez

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has not carried his burden of establishing the first prong of the Strickland test, and thus,

he has not shown by a preponderance of the evidence that he is entitled to relief under

section 1473.7. (§ 1473.7, subd. (e).)

DISPOSITION

The order is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

O'ROURKE, J.

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