People v. Ramirez CA2/5

Filed 10/28/20 P. v. Ramirez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B296793

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA125627)
v.

ENEDINA RAMIREZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of the County
of Los Angeles, Michael A. Cowell, Judge. Affirmed.
Law Office of Gary Finn and Gary Finn for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Analee J.
Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
 I. INTRODUCTION

Defendant Enedina Ramirez, a Mexican citizen, pleaded no
contest in an “open plea” to charges of corporal injury to a
cohabitant or child’s parent and assault with a deadly weapon.
She appeals from an order denying her subsequent motion to
withdraw her plea and vacate her conviction. We affirm.

II. BACKGROUND

A. Underlying Conviction

On July 9, 2012, defendant was arrested for stabbing R.R.,
the father of defendant’s two children.1 According to the
testimony at the preliminary hearing, on the day of the incident,
defendant and R.R. resided in the same residence, but in
different bedrooms. Early in the morning of July 9, 2012,
defendant walked into R.R.’s bedroom holding a knife. The two
had quarreled earlier. R.R., who was lying on his bed, saw the
knife in defendant’s hand and pulled his legs up defensively,
resulting in his sustaining stab wounds to both legs. R.R. was
transported to and treated at a hospital.
On August 13, 2012, the Los Angeles County District
Attorney filed an information charging defendant with inflicting
corporal injury on a cohabitant or child’s parent (Pen Code,

1 At the time of her offenses, defendant was pregnant with
the second of her and R.R.’s two children.

2
§ 273.5, subd. (a),2 count one) and assault with a deadly weapon
(§ 245, subd. (a)(1), count two). The information further alleged
that defendant had personally used a deadly and dangerous
weapon in connection with count one (§ 12022, subd. (b)(1)) and
had personally inflicted great bodily injury on R.R. in connection
with count two (§ 12022.7, subd. (a)).
On the first day of her scheduled trial, defendant pleaded
no contest before Commissioner Michael L. Schuur (the
sentencing court). Before entering her plea, defendant completed
a “Felony Advisement of Rights, Waiver, and Plea Form,” in
which she initialed the box indicating that she understood the
consequences of a no contest plea, including the possibility of
deportation from the United States and exclusion from reentry.
She also acknowledged that her plea was being made freely,
voluntarily, and with knowledge of all matters detailed in the
change of plea form.
During the change of plea hearing, defendant
acknowledged that she was pleading “open”; that is, that she was
pleading without a plea agreement and the sentencing court
could sentence her up to the maximum possible sentence in this
case.3 Further, the sentencing court advised defendant, among
other things, that: “If you are not a citizen of the United States

2 All further statutory references are to the Penal Code.

3 “An open plea is one under which the defendant is not
offered any promises. [Citation.] In other words, the defendant
‘plead[s] unconditionally, admitting all charges and exposing
[her]self to the maximum possible sentence if the court later
chose to impose it.’ [Citation.]” (People v. Cuevas (2008) 44
Cal.4th 374, 381, fn.4.)

3
you will be deported, denied reentry into the country, and denied
the right to become a natural citizen.” When the court asked
defendant if she understood the consequences of her plea,
defendant answered, “Yes.” Defendant then entered a plea of no
contest to both counts of the information and admitted that the
special allegations were true. The court found that defendant
had “made a knowing, understanding, and intelligent waiver of
her constitutional rights, [and] that she ha[d] been advised of the
maximum sentence and the consequences of her plea . . . .” The
court accepted defendant’s no contest pleas and admissions of the
special allegations.
At the November 5, 2012, sentencing hearing, the
sentencing court noted that defense counsel had submitted
letters in support of defendant.4 The court then asked whether
either side wished to be heard before the court imposed sentence.
The prosecutor advised the court that the People’s plea offer had
been for two years’ imprisonment and emphasized that defendant
had engaged in a violent act with a knife. Defense counsel did
not request a particular sentence, but observed that defendant
did not have any prior convictions.
After the parties submitted the matter, the sentencing
court listed certain factors in mitigation, including that
defendant suffered from depression and had no criminal record.
The court also observed, in aggravation, that “it’s a very serious
case when you stab somebody.” The court then sentenced
defendant to five years’ probation, with a condition that

4 The defense letters submitted at sentencing are not part of
the record on appeal.

4
defendant serve one year in the county jail. The court then
struck the great bodily injury enhancement.

B. Motion to Withdraw Plea and Vacate Conviction

On September 7, 2018, defendant filed a motion to
withdraw her no contest plea pursuant to sections 1473.7 and
1016.5. She argued that (1) defense counsel failed to advise her
adequately about the immigration consequences of her plea;
(2) counsel was ineffective in failing to attempt to mitigate or
defend against the adverse immigration consequences of the plea;
and (3) the sentencing court did not properly advise her of the
potential immigration consequences of her plea.
Defendant submitted a declaration stating, among other
things, that defense counsel had not advised her that her crimes
were “aggravated felonies” under the immigration laws and that
she would be deported because of her convictions. Defendant
additionally contended that she did not understand the
immigration consequences of her plea because she was on
medication—Zoloft—at the time of her plea. Finally, according to
defendant, “Had [she] understood that by pleading no contest
[she] would become subject to deportation and would be ineligible
to apply for any type of pardon or relief in immigration court, or
had [she] known that there might have been ways to plead no
contest and avoid deportation, [she] never would have pled no
contest to the charges against [her] but instead [she] would have
taken [her] case to trial or [she] would have fought for a
disposition that would not have resulted in [her] automatic
deportation.”

5
C. Hearing

On February 21, 2019, the parties appeared before the trial
court for a hearing on defendant’s motion.5 Defendant called
defense counsel as a witness and agreed to waive the attorney-
client privilege as to his testimony. Defense counsel, who had
been a deputy public defender since 1997, testified that he was
aware that defendant was not a United States citizen. He
discussed the prosecution’s plea offer of two years with defendant
and advised her that conviction on the pending charges, which
were aggravated felonies, would result in defendant’s deportation
and denial of reentry and naturalization.
Defense counsel believed that the prosecution’s plea offer
was too high in light of defendant’s lack of a criminal record. He
therefore sought a more favorable plea agreement for defendant.
Although he believed that defendant should proceed to trial,
defense counsel ultimately asked the sentencing court whether
defendant could enter an open plea to the court.
When asked why he had not specifically requested a
sentence of 364 days in county jail, defense counsel responded
that he had a good relationship with the bench officer who
presided over the sentencing hearing and that he “was a good
person to plea open to. But I was just only going to ask [for] so
much, hey, will you help us out here.” Defense counsel admitted
that in retrospect, he could have requested a jail sentence of 364
days.

5 By the time of the hearing, Commissioner Shuur had
retired and the matter was assigned to a different bench officer.

6
 Defendant also testified. During her direct examination,
she testified that she had been diagnosed with depression and
psychosis and had been prescribed Zoloft. She was taking Zoloft
at the time of her change of plea, which made her sleepy. On
cross-examination, she admitted that she was not diagnosed until
two years after entering her plea, on July 29, 2014.
During her direct examination, and contrary to her
declaration, defendant testified that she did not recall whether
defense counsel discussed the immigration consequences of her
plea, but believed that he did discuss aggravated felonies with
her. She initially testified that had she known she would be
deported as a result of her no contest plea, she would not have
entered such a plea and would have taken the case to trial. She
later admitted, however, that defense counsel advised her to
proceed to trial, but she decided to enter a no contest plea
because she “wanted to be at home with [her] kids for
Christmas.”
The trial court found the entirety of defense counsel’s
testimony to be credible. The court also concluded that the
People’s two year plea offer was reasonable given the
circumstances of defendant’s crimes and defense counsel acted
reasonably in seeking an open plea from the court. In the court’s
view, as an experienced deputy public defender, “[defense
counsel] knew that [the sentencing court] would be fair and
justiciable in [its] disposition of the case and [defense counsel]
was right.” Finally, the court found that defense counsel was not
unreasonable in failing to ask for a sentence of 364 days because
the sentencing court knew that a sentence of “364 days was
better than a sentence of 365 days in terms of immigration
consequences.” Further, “To say that [defense counsel] should

7
have requested 364 [days], no. That’s splitting hairs.” The court
then recited the portions of the change of plea hearing that
demonstrated defendant was advised of the immigration
consequences of her plea and denied defendant’s motion.

III. DISCUSSION

Defendant appeals from the order denying her motion to
withdraw her no contest plea and vacate her conviction,
contending that (1) she was not properly advised about the
potential immigration consequences of her plea by the sentencing
court, in violation of section 1016.5; and (2) she was entitled to
withdraw her plea and have her conviction vacated pursuant to
section 1473.7 because defense counsel rendered ineffective
assistance by failing (a) to explain adequately the immigration
consequences of her plea and (b) to request that the sentencing
court sentence defendant to 364 days in custody.

A. Section 1016.5

Section 1016.5, subdivision (a) “requires that before
accepting a plea of guilty or nolo contendere to any criminal
offense, the trial court must advise the defendant that if he or she
is not a United States citizen, conviction of the offense may result
in deportation, exclusion from admission to the United States, or
denial of naturalization.” (People v. Totari (2002) 28 Cal.4th 876,
879.)
We review a trial court’s denial of a motion brought
pursuant to section 1016.5 for abuse of discretion. (People v.
Asghedom (2015) 243 Cal.App.4th 718, 724.) We review the

8
court’s finding whether an advisement was given for substantial
evidence. (People v. Tapia (2018) 26 Cal.App.5th 942, 951.)
Here, the trial court’s finding that the sentencing court
complied with section 1016.5, subdivision (a) is supported by
substantial evidence, as demonstrated by the transcript of the
change of plea hearing. Specifically, the court advised defendant:
“If you are not a citizen of the United States you will be deported,
denied reentry into the country, and denied the right to become a
natural citizen.” (Italics added.) Thus, the court properly
advised defendant of the potential and actual consequences of her
plea, as required by section 1016.5, subdivision (a). Defendant’s
argument to the contrary is meritless.

B. Section 1473.7

We next consider the merits of defendant’s claim that she
was entitled to withdraw her plea pursuant to section 1473.7,
subdivision (a)(1) which states, in relevant part: “A person who is
no longer in criminal custody may file a motion to vacate a
conviction or sentence for . . . the following reason[]: [¶] . . . The
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. A finding of legal invalidity may, but need not,
include a finding of ineffective assistance of counsel.”
“A criminal defendant’s federal and state constitutional
rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I,
§ 15) include the right to effective legal assistance.” (People v.
Mai (2013) 57 Cal.4th 986, 1009.) A counsel’s performance is

9
judged by an objective standard of reasonableness. (Strickland v.
Washington (1984) 466 U.S. 668, 687–688 (Strickland).)
Determining a claim of ineffective assistance of counsel requires
a court to consider the totality of the circumstances. (Id. at
pp. 680, 695.) “[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.” (Id. at p. 690.)
Further, “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable.” (Ibid.)
To establish that defense counsel provided ineffective
assistance in advising a defendant about the immigration
consequences of a plea, the defendant “must demonstrate that
(1) counsel’s representation fell below an objective standard of
reasonableness, as judged by ‘prevailing professional norms’
(Strickland, supra, 466 U.S. at p. 688),” and (2) counsel’s error
was prejudicial. (People v. Olvera (2018) 24 Cal.App.5th 1112,
1116–1117.) The defendant “must carry [her] burden of proving
prejudice as a ‘demonstrable reality,’ not simply speculation as to
the effect of the errors or omissions of counsel.” (People v.
Williams (1988) 44 Cal.3d 883, 937.)
Defendant claims that defense counsel’s representation was
deficient—i.e., falling below an objective standard of
reasonableness—because he (a) did not advise defendant about
the immigration consequences of her plea, and (b) failed to
request that the sentencing court impose a period of incarceration
less than one year.6

6 Defendant’s convictions subjected her to deportation.
(8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii), and

10
 “Whether trial counsel performed competently, that is,
‘reasonabl[y] under prevailing professional norms’ (Strickland,
supra, 466 U.S. at p. 688 . . .), presents a mixed question of fact
and law. Such questions are ‘generally subject to independent
review as predominantly questions of law—especially so when
constitutional rights are implicated’—and ‘include the ultimate
issue, whether assistance was ineffective, and its components,
whether counsel’s performance was inadequate and whether such
inadequacy prejudiced the defense.’ [Citation.]” (In re Resendiz
(2001) 25 Cal.4th 230, 248–249, abrogated on another point in
Padilla v. Kentucky (2010) 559 U.S. 356, 370.)

1. Failure to Advise

Defendant’s contention that defense counsel failed to advise
her about the immigration consequences of her plea is
unsupported by the record. Counsel testified that he advised
defendant that she would be deported as a consequence of her
plea. The trial court found defense counsel’s testimony to be
credible. (People v. Maury (2003) 30 Cal.4th 342, 403 [“[I]t is the
exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon
which a determination depends”].) Defendant therefore cannot
establish the first prong of Strickland, supra, 466 U.S. 668.

1227(a)(2)(E)(i).) Because defendant received a sentence of one
year, she was deemed an aggravated felon, which precludes her
from seeking discretionary relief from removal under the
statutory language. (8 U.S.C. § 1229b(a)(3).)

11
 2. Failure to Request a Period of Incarceration of
Less Than One Year

Defendant next contends that defense counsel was
ineffective for failing to “ask the court not to sentence [her] to 365
days or more on either count.” The trial court concluded that
counsel’s failure to make such a request was a reasonable
strategy call, one which, in the court’s view, was ultimately
successful as the sentencing court imposed a sentence that was
favorable to defendant. We agree.
Defendant faced a potential maximum sentence of eight
years’ incarceration. Pursuant to section 1203, subdivisions (e)(2)
and (e)(3), defendant was ineligible for probation, absent a
finding that this was an unusual case in which the interest of
justice would be served by a grant of probation. (§ 1203, subds.
(e)(2) and (e)(3).) According to the Los Angeles County Probation
Department’s pre-conviction report, defendant was unsuitable for
a grant of probation given the circumstances of her crime. The
low term for each of defendant’s crimes was two years (§§ 273.5,
subd. (a), 245, subd. (a)(1)) and the special allegations subjected
defendant to an additional consecutive term of one and three
years in prison (§§ 12022, subd. (b)(1), 12022.7, subd. (a)). The
prosecution recommended a sentence of two years’ imprisonment.
Under these circumstances, defense counsel was not
unreasonable in pursuing a strategy that avoided requesting an
unreasonably low sentence, one that suggested defendant did not
appreciate the seriousness of her conduct, which, in turn, could
support the imposition of an even higher sentence. That the
sentencing court, after the parties had submitted on their
arguments, ultimately sentenced defendant to probation with a

12
condition that she serve 365 days in jail does not change our
analysis. (See People v. Avena (1996) 13 Cal.4th 394, 447 [A
strategy’s “succe[ss] . . . is not the test of competent counsel”].)
Even if we were to assume for purposes of this opinion that
defense counsel was unreasonable in failing to request a sentence
of less than 365 days, defendant still cannot demonstrate
prejudice. First, there is no indication that the sentencing court
would have been swayed by counsel’s request and imposed a
sentence less than the one it believed to be appropriate for
defendant’s crimes. As the trial court found, “no one needed to
tell [the sentencing court] that 364 was better than 365 in terms
of immigration consequences.” (See People v. Mack (1986) 178
Cal.App.3d 1026, 1032 [“It is a basic presumption indulged in by
reviewing courts that the trial court is presumed to have known
and applied the correct statutory and case law in the exercise of
its official duties”].) To the extent defendant contends that
counsel was obliged to advise the sentencing court of the details
of defendant’s immigration status, we disagree and note that
imposing such an obligation is inconsistent with section 1016.5,
subdivision (d), which expresses the Legislature’s intent “that at
the time of the plea no defendant shall be required to disclose his
or her legal status to the court.”

13
 IV. DISPOSITION

The order denying the motion to withdraw the plea and
vacate the conviction is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

I concur:

MOOR, J.

14
 PEOPLE v. ENEDINA RAMIREZ

B296793

RUBIN, P. J. – Dissenting:

The trial court’s order now on appeal adjudicated
defendant’s “Notice of Motion and Motion to Withdraw No
Contest Plea . . . .” At the close of the hearing, defense counsel
took a different turn and asked the trial court (Judge Michael A.
Cowell), “Your honor, would the court consider a nunc pro tunc
reduction of each probation term on each count to 364 days?” The
court replied, “No. I don’t see that I could do that.”1 That is the
type of question defendant’s first attorney should have put to the
sentencing judicial officer, Commissioner Michael Schuur.2
Commissioner Schuur would have understood the one day
difference and could have revised the probation terms before
defendant would have even accepted them. It is the failure to
make that request that was the ineffective assistance of counsel
in this case.

1 Judge Cowell was correct. Leaving aside the impropriety of
one judge changing the sentence of another judge (see In re
Alberto (2002) 102 Cal.App.4th 421, 427), a “nunc pro tunc order
is generally limited to correcting clerical errors; ‘ “a nunc pro tunc
order cannot declare that something was done which was not
done.” ’ (Johnson & Johnson v. Superior Court (1985) 38 Cal.3d
243, 256 . . . .)” (People v. Borja (2002) 95 Cal.App.4th 481, 485.)

2 The hearing on the motion to vacate took place on
February 21, 2019. By that time, Commissioner Schuur had
retired.
 This appeal presents two questions. First, was there
ineffective assistance of counsel when original counsel advised
defendant of the immigration consequences of her no contest
plea. Second, was counsel’s assistance ineffective at the time of
sentencing when he did not ask Commissioner Schuur to impose
364 days rather than 365 days in custody – a sentence that would
have permitted defendant to seek relief from an otherwise
deportable offense. I agree with the majority that counsel was
not ineffective in the advice he gave defendant before she entered
her plea on October 12, 2012. On the second point, I disagree
with the majority. Counsel’s assistance was ineffective at the
time of sentencing on November 5, 2012. I would reverse and
remand for a new sentencing hearing.
The majority has correctly set out the timeline of events.
In summary, defendant was facing a maximum of eight years in
prison for the offenses she had committed. At some point in the
proceedings, the prosecution offered a plea deal for two years in
state prison, which defendant did not accept. The prosecution
made no further offers and defense counsel did not propose a
different sentence.
What defense counsel did next was to effectively gauge
what Commissioner Schuur might do if defendant pled open, in
other words without an agreement on sentence. At the
subsequent motion to vacate, defense counsel testified that he
had a “good relationship” with Commissioner Schuur who counsel
described as a “good person to plea open to. But I was only going
to ask [for] so much, hey will you help us out here.” Defense
counsel also testified that he consciously decided not to ask
Commissioner Schuur for a specific sentence. He was concerned
that a low-ball proposal would not be well received, and he had

2
confidence Commissioner Schuur would impose a just sentence.
Although he did not say this in so many words, implicitly counsel
appears to have been satisfied that at worst the sentence would
be for the two years offered by the prosecution and at best
something quite less. He was right, sort of.
Commissioner Schuur imposed probation with 365 days in
jail. If the Commissioner Schuur had included as a term of
probation one day less – 364 days – it is unlikely that seven years
later defendant would have filed a motion to vacate. Her chances
of deportation would have been significantly reduced. Even if
deportation proceedings were later to be commenced, under
federal law defendant could have sought discretionary relief from
deportation. (8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii).) With
a 365-day term of incarceration, her crimes became aggravated
felonies for which discretionary relief was not available.
(8 U.S.C. § 1229b(a)(3).)
Understandably, counsel decided to tread carefully at the
sentencing hearing, not wanting to ask for too much of a reduced
sentence for fear that his client would go to prison. That was a
reasonable strategic decision. But once Commissioner Schuur
granted probation and included 365 days of custody time, things
changed dramatically. No longer was defendant facing a two
year prison term. But the 365 days should have put counsel on
high alert. Admittedly, attorneys are properly taught not to
argue after the court has made its ruling, and Commissioner
Schuur had indeed handed down his probationary sentence.
Nevertheless the critical immigration consequences attached to
365 days, but not to 364, called for action by defense counsel. The
risk was almost non-existent. Defendant’s attorney had great
confidence in Commissioner Schuur, who was lauded by Judge

3
Cowell at the hearing on the motion to vacate as one of the best
criminal court judicial officers around. Commissioner Schuur
was thoughtful in his choice of sentence. He did not simply adopt
the two year offer by the prosecution. He was mindful of
defendant’s five children, and that her victim, the father of some
of those children, had asked the court not to send defendant to
jail. Under these circumstances, the only reasonable strategic
decision was to ask Commissioner Schuur for one day less. The
failure to do so was ineffective assistance of counsel.
I agree with the majority that “defense counsel was not
unreasonable in pursuing a strategy that avoided requesting an
unreasonably low sentence, one that suggested defendant did not
appreciate the seriousness of her conduct, which, in turn, could
support the imposition of an even higher sentence.” (Maj. Opn.,
at p. 12.) But overlooked is that after the court imposed
probation a request for one day less in jail neither would have
suggested that defendant did not take her crimes seriously, nor
would it have triggered “the imposition of an even higher
sentence.” No reasonable judicial officer would take such
punitive action because of a last minute effort to avoid drastic
immigration circumstances.
Strickland v. Washington (1984) 466 U.S. 668 requires the
defense to establish that counsel’s performance was objectively
unreasonable and that defendant suffered prejudice as a result.
Although I find the first element was easily satisfied, whether
defendant suffered prejudice from counsel’s inaction is a much
closer question. The majority writes that “there is no indication
that the sentencing court would have been swayed by counsel’s
request and imposed a sentence less than the one it believed to be
appropriate for defendant’s crimes.” If “indication” requires an

4
affirmative statement by the sentencing court, the majority is
right. But the circumstantial evidence so to speak – from
counsel’s and Judge Cowell’s high regard for Commissioner
Schuur, to not accepting the prosecution’s sentencing
recommendation of two years, to the court commenting on the
victim not wanting defendant to go to jail – all suggest that
Commissioner Schuur would have reduced the sentence by one
day. Even Judge Cowell at the motion to vacate hearing realized
the unfairness of the 365 day cut-off. “I know that the equities
are terrible in this situation, that there should be someone placed
before a federal judge who has no discretion.” There is no reason
to believe that Commissioner Schuur would have felt any
differently.
I would reverse the order and remand for a new sentencing
hearing.

RUBIN, P. J.

5