Filed 1/12/21 P. v. Le CA6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H047423
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1759938)
v.
SON THANH LE,
Defendant and Appellant.
After pleading no contest to two sex-related crimes, appellant Son Thanh Le filed
a motion under Penal Code section 1018 to withdraw his plea. Le asserted that his plea
was unknowing because his counsel had not adequately informed him of the immigration
consequences of his convictions. The trial court denied the motion. It found Le had been
advised of the possible immigration implications of his no contest plea prior to its entry
and had not established by clear and convincing evidence that he would have made a
different decision if he had had more time to consider its immigration ramifications.
On appeal, Le argues that the trial court abused its discretion by denying his
motion. Further, Le contends that his defense counsel provided prejudicially ineffective
assistance by failing to give him adequate time in which to consider the immigration
consequences of the proposed plea agreement. For the reasons set forth below, we reject
Le’s claims and affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
Between January 2012 and March 2017, Le committed multiple sexual offenses
against his niece, who was then a minor.1
In December 2017, the Santa Clara County County District Attorney filed an
information charging Le with one count of oral copulation or sexual penetration of a child
10 years of age or younger, in violation of Penal Code section 288.7, subdivision (b)2
(count one), and four counts of lewd or lascivious act on a child by force, violence,
duress, menace, or fear, in violation of section 288, subdivision (b)(1) (hereafter section
288(b)(1)) (counts two through five). The trial court appointed the public defender to
represent Le.
Le was tried before a jury in October and November 2018. On November 14,
2018, the trial court declared a mistrial after the jurors were unable to reach a unanimous
verdict. Following the mistrial, on November 27, 2018, Le pleaded no contest pursuant
to a written plea agreement to two violations of section 288(b)(1) before the same judge
who had presided over his earlier trial. The plea agreement provided that Le would serve
five years in prison on each count, to run concurrently with each other, and would waive
his entitlement to his pre-sentencing custody credits. In exchange, the information’s
remaining counts would be dismissed.
In his written plea agreement, Le initialed a box next to a section entitled
“immigration consequences” (capitalization omitted), that stated “I understand if I am not
a citizen of the United States, my plea of guilty or no contest in this case may result in my
deportation (removal), exclusion from admission (re-entry) to the United States, or denial
of naturalization and amnesty pursuant to the laws of the United States. My attorney has
talked to me about this, and I am entering my plea understanding these consequences.”
Le also initialed a statement “I have read this form (or this form was read to me) and I
1
Because Le was convicted by plea, we take this fact from his probation report.
2
Unspecified statutory references are to the Penal Code.
2
have initialed the items that apply to my case. I am indicating I understand and agree
with what is stated in each item I have initialed. I freely and voluntarily plead: [¶] . . . no
contest” (some capitalization omitted).
During the change-of-plea hearing, in response to questions from the trial court,
Le stated that he had initialed and signed the plea agreement; he understood his rights as
described in the plea agreement and agreed to give them up. The trial court asked Le,
“Do you understand the consequences of your pleas today as they are described on this
form, as they have been discussed here in court and including any immigration
consequences?” Le replied “Yes” and stated that he did not have any questions about the
plea agreement. Le did not ask the trial court for more time to consider the potential
immigration consequences of his plea. The trial court asked Le’s counsel whether she
had “fully discussed with [her] client his constitutional rights and the consequences of his
pleas today including any immigration consequences?” Le’s counsel responded that she
had.
Le then pleaded no contest to two counts of section 288(b)(1), and the trial court
accepted his plea. The trial court set a sentencing hearing for December 24, 2018.
On December 24, 2018, Le appeared with private counsel. The trial court relieved
the public defender from its representation of Le and set a further hearing date. On
February 13, 2019, Le filed a motion to withdraw his plea.
A. Motion to Withdraw the Plea
In the motion to withdraw his plea and the accompanying declaration, Le asserted
that his former attorney had not explained to him the immigration consequences of his
plea, and he believed “he had no alternative but to accept the plea bargain.” Le asserted
there was good cause for the trial court to allow Le to withdraw his no contest plea
because he did not have sufficient opportunity to consider the serious immigration
consequences of his plea, and his attorney did not advise him of the adverse immigration
consequences of his convictions.
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The district attorney opposed Le’s motion, contending Le had not produced clear
and convincing evidence in support of his motion to withdraw his plea.
B. Testimony at the Hearing on the Motion to Withdraw the Plea
On May 2, 2019, the trial court held a hearing on Le’s motion to withdraw his plea
at which Le and his former attorney testified. Le testified that, when he entered his no
contest plea on November 27, 2018, he was represented by an attorney from the public
defender’s office (public defender). Prior to that date, he had never had a conversation
with his attorney about his immigration status.
Le stated that the public defender “[j]ust briefly” went over the plea agreement
form with him. She did not review with him the constitutional rights that he would be
waiving or his possible defenses. When they got to the immigration portion of the waiver
form, his attorney asked him “ ‘ You are a U.S. citizen, right?’ ”, and Le said “ ‘no.’ ” Le
testified “And I was just told that I would have to get an immigration attorney.” That was
the first time the public defender asked him if he was a U.S. citizen. Le stated he did not
have an understanding of the immigration consequences of the convictions at the time he
entered his no contest plea.
At the hearing on the motion to withdraw his plea, Le’s new counsel asked Le if
the trial court had inquired at the change-of-plea hearing about Le’s understanding of the
rights he was giving up. Le responded, “No. I mean I basically was kind of just forced to
sign the deal because my—my attorney she—she didn’t sound too enthusiastic about
going back to trial. My original plan was to—to retrial.” Le stated he “really didn’t
understand” his plea form and felt pressured to sign it.
On cross-examination, Le acknowledged that he had signed and initialed the plea
form. His attorney had spent about 10 minutes with him going over the form. Le stated
that he did not remember if the trial court had asked him whether he had any questions
about the plea agreement during the change-of-plea colloquy. Le knew that his attorney
and the district attorney had had several discussions about resolving his case prior to the
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date Le entered his no contest plea. During those discussions he and his counsel never
spoke about his immigration status.
With respect to timing, Le testified “we were under pressure—that was what the
deal was and I had to do it right then and there. I had to sign it right then and there or
else there was no more deal.” However, Le also stated that the day before he entered his
plea, he asked his attorney for one more day to think about the deal. Le went back to the
jail, thought about it, and, the next day, entered his no contest plea. Le acknowledged
that he never asked for more time to consult with an immigration attorney.
Le’s former attorney, the public defender, also testified.3 Prior to the date of Le’s
change of plea, she had not personally asked Le whether he were a U.S. citizen. A
paralegal from the public defender’s office had done an initial intake interview with Le.
The information about Le’s immigration status was in the public defender’s file and his
attorney was aware of it. Prior to the date Le entered his no contest pleas, she had not
advised him to consult with an immigration attorney. On that date, she advised him to
speak to an immigration attorney once he was released from custody. She had conducted
an “immigration investigation” about the charges prior to negotiating the plea agreement.
On the date Le entered his plea, his attorney advised him that the charges would
make him “deportable.” Le’s attorney also believed that Le would not be “removable”
because he had entered the country prior to 1995, but she could not recall whether she
had specifically advised Le that he would not be removable. Le did not ask her any
questions about his immigration status and did not appear confused during their
discussion. She and Le had been in court one or two days prior to the change-of-plea
hearing, and Le asked for and received more time to consider the plea offer. Le did not
ask her for more time to consult with an immigration attorney after she told Le about the
possible immigration consequences of his plea.
3
Le waived his attorney-client privilege to his discussions with his former
attorney.
5
Le’s former attorney went over the plea agreement form with him and explained
each item to him, including each of the constitutional rights he would be waiving and the
section on immigration consequences. She also had him read the form. She had met with
Le at the jail a week before he entered his no contest plea to answer any questions he had.
She testified that she did not have Le just sign the form without understanding it.
Le’s former attorney remembered discussing with Le the status of the “hung jury”
from his original trial that resulted in a mistrial due to jury deadlock. It was her
understanding that, on the count that carried a potential life sentence, 11 jurors had voted
for guilty and one for not guilty. She specifically discussed with Le the possibility of a
life sentence if one of the jurors had made a different decision.
C. Trial Court’s Ruling on the Motion to Withdraw the Plea
After hearing this evidence and considering argument from counsel, the trial court
denied Le’s motion to withdraw his plea. The trial court found that the evidence was
clear that Le had been advised prior to entering his plea of the possible immigration
consequences in writing and orally by his attorney and by the trial court. In addition, the
trial court found Le’s understanding of the immigration consequences “sufficient for
purposes of denying his motion to withdraw his plea.” Furthermore, the trial court found
that the evidence was not clear and convincing that Le “would have made a different
decision had he had additional time or had a better understanding” of the potential
immigration consequences of the plea. The court stated “there is substantial material
before the [c]ourt to show that the defendant and his attorney at the time spent careful
consideration and time in interacting with the prosecutor’s office regarding the potential
resolution of the case after the trial disposition with a hung jury that was by division not
favorable to the likelihood of a better outcome for him at a retrial and that the defendant
made a voluntary, knowing and consc[ious] decision to accept the prosecutor’s offer to
avoid the potential consequences of a life sentence when his attorney was giving him her
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best assessment of the strengths and benefits of moving forward to another trial versus
accepting an offer that might have been made by the prosecutor’s office.”
The trial court concluded that Le had not carried his burden of proof that the court
should grant his motion to withdraw his plea and, exercising its discretion, denied the
motion.
After denying the motion and consistent with the plea agreement, the trial court
sentenced Le to five years’ imprisonment on counts 2 and 3, to run concurrently with
each other. The trial court awarded 75 days of custody credits, imposed a number of
fines and fees, and dismissed the remaining counts and allegations.
Le filed a timely notice of appeal and a request for a certificate of probable cause.
The trial court granted the certificate.
II. DISCUSSION
Le contends that the trial court abused its discretion by denying his motion to
withdraw his plea. Le bases his argument on “the legislative intent and purposes behind
section 1016.5,” which in Le’s view “imply certain factors pertinent to a section 1018
evaluation.”
Le acknowledges that he was adequately advised under section 1016.5 by the trial
court of the immigration consequences of his plea but argues that the record demonstrates
that at the time of his plea he was not given sufficient time to consider its potential
immigration consequences. Le attacks the trial court’s finding that Le did not establish
that he would have taken a different strategy had he been advised differently about the
immigration consequences of his conviction. Although the plea agreement, on its face,
was favorable for Le, he contends the trial court wrongly focused solely on the possibility
of conviction of a crime carrying a life sentence and did not adequately consider the
consequences of deportation. Le contends that the record evidence compels a finding of
good cause under section 1018, and he should be permitted to withdraw his plea.
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Alternatively, Le asserts that his defense counsel provided prejudicially ineffective
assistance by failing to afford him a “meaningful opportunity” to consider the
immigration consequences of the proposed plea agreement; by not giving him correct
advice that his convictions would result in his being “ ‘removable’ ”; and by not
attempting to negotiate a different plea bargain without the same immigration
consequences. Moreover, Le contends there is a reasonable probability that Le would not
have entered his plea but for his counsel’s errors and maintains it would not have been
irrational for him to risk additional prison time in order to avoid deportation.
For the reasons set forth below, we find no error in the trial court’s denial of Le’s
motion and determine that Le did not suffer prejudice from any alleged ineffectiveness in
the representation provided by his original defense counsel.
A. Motion to Withdraw the No-Contest Plea
A court may permit a guilty or no contest plea to be withdrawn “for good cause
shown.” (Pen. Code, § 1018; People v. Archer (2014) 230 Cal.App.4th 693, 702
(Archer).) “ ‘ “Good cause” means mistake, ignorance, fraud, duress or any other factor
that overcomes the exercise of free judgment and must be shown by clear and convincing
evidence.’ ” (People v. Dillard (2017) 8 Cal.App.5th 657, 665.) “A plea may not be
withdrawn simply because a defendant has changed his or her mind.” (Ibid.)
An appellate court reviews the denial of a motion to withdraw a plea for an abuse
of discretion. (People v. Patterson (2017) 2 Cal.5th 885, 894 (Patterson).) The trial
court’s order “is final unless the defendant can show a clear abuse of that discretion.”
(People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) “An abuse of discretion is found if
the [trial] court exercises discretion in an arbitrary, capricious or patently absurd manner
resulting in a manifest miscarriage of justice.” (People v. Shaw (1998) 64 Cal.App.4th
492, 496.) “ ‘[W]hen a trial court’s decision rests on an error of law, that decision is an
abuse of discretion.’ ” (Patterson, at p. 894.) The “reviewing court must adopt the trial
court’s factual findings if substantial evidence supports them.” (Fairbank, at p. 1254.)
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“ ‘ “ ‘All questions of the weight and sufficiency of the evidence are addressed, in the
first instance, to the trier of fact, in this case, the trial judge.’ ” ’ ” (Archer, supra, 230
Cal.App.4th at p. 702.)
Le ties his argument that his plea was unknowing to section 1016.5. In relevant
part, this statute provides “(a) Prior 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. [¶] (b) Upon request, the court shall allow the
defendant additional time to consider the appropriateness of the plea in light of the
advisement as described in this section.” (§ 1016.5.)
Le does not dispute that, at the time he entered his no contest plea, he was aware
that his plea could affect his immigration status. His attorney had told him that his plea
would render him “deportable.” Le also does not contest that he was provided the
immigration advisement required by section 1016.5. Indeed, Le was given an advisement
about adverse immigration consequences three times before entering his no contest plea:
orally by the court, orally by his counsel, and in writing in the plea agreement. Le’s
argument that the trial court’s decision rests on an error of law stems from the short
period of time between when his attorney informed him about his possible deportation
(and may also have told Le he was not removable) and when he entered his no contest
plea.
We recognize that “[e]ven when a trial court has fulfilled its advisement duties, a
defendant may show good cause to withdraw a guilty plea under section 1018 when,
because of mistake or ignorance, the defendant has entered a guilty plea he or she would
9
not otherwise have entered.” (Patterson, supra, 2 Cal.5th at p. 897.) The focus of a
section 1018 inquiry is “what the defendant knew when entering the plea.” (Ibid.)
Our review of the trial court’s conclusion that Le had not carried his burden under
section 1018 is deferential. As the California Supreme Court has observed, “as is
typically the case under section 1018, a court asked to set aside a guilty plea based on
mistake or ignorance of the deportation consequences is ‘properly vested with discretion
to grant or to deny the motion after considering all factors necessary to bring about a just
result.’ [Citation.] In exercising that discretion, a trial court may take into consideration
the defendant’s reaction to the section 1016.5 advisement—for example, whether the
defendant acknowledged understanding the advisement and whether he or she expressed
concerns about possible deportation consequences or sought additional time to consult
with counsel. These considerations, along with any others that bear on the defendant’s
state of mind at the time of the plea, may assist courts in evaluating a later claim that the
defendant would not have entered the plea had he or she understood the plea would
render the defendant deportable.” (Patterson, supra, 2 Cal.5th at pp. 898–899.)
The record supports the trial court’s conclusion that Le did not carry his burden of
showing by clear and convincing evidence that he would not have entered the plea had he
been told earlier about any adverse immigration consequences. There is no evidence that
during the change of plea hearing Le expressed concern about his potential deportation or
removal. Even more significant, upon learning about the potential adverse immigration
consequences of his plea, Le did not request more time to speak to an immigration
attorney—or even more time to think about the offer. Section 1016.5 itself, the statutory
basis for Le’s argument, places the burden on the defendant to request further time. That
statute provides, “(b) Upon request, the court shall allow the defendant additional time to
consider the appropriateness of the plea in light of the advisement as described in this
section.” (§ 1016.5, subd. (b), italics added.)
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Le made no such request and provides no explanation for this failure. Prior to the
change-of-plea hearing on November 27, 2018, Le had already asked for—and
received—another day to consider the offer, highlighting that he knew of the possibility
of requesting more time. Although Le testified that he felt “forced” to sign the plea
agreement, there was no evidence other than Le’s statement that the plea offer would
have been withdrawn if Le had asked for the opportunity to speak to an immigration
attorney. Le presented no evidence supporting his statement he was coerced into signing
the agreement. The trial court was not obligated to agree with Le’s evidence (see People
v. Caruso (1959) 174 Cal.App.2d 624, 636), some of which was clearly contradicted by
the record from the change-of-plea hearing. Furthermore, the trial court is the exclusive
judge of credibility. (Ibid.) For these reasons, we decide that substantial evidence
supports the trial court’s finding Le did not establish mistake or ignorance of the
immigration consequences of his plea sufficient to carry his burden under section 1018.
Our deference to this finding is especially appropriate where the same judge who
denied Le’s motion to withdraw his plea had presided over his earlier trial, which resulted
in a mistrial. The information against Le charged him with a violation of section 288.7,
subdivision (b), which carries a term of imprisonment of 15 years to life. (§ 288.7, subd.
(b).) Le was also charged with four counts of section 288(b)(1), each of which carries a
potential prison term of 5, 8, or 10 years. (§ 288, subd. (b)(1).) The evidence before the
court was that the jury had voted to convict on the section 288.7 charge by a vote of 11-1,
suggesting that the 5-year sentence provided in the plea agreement was particularly
advantageous for Le.
Le’s former attorney testified that she had conducted an “immigration
investigation” about potential charges prior to negotiating the plea agreement. Le
introduced no evidence in the hearing on the motion to withdraw that a potentially more
advantageous disposition was available in light of the charges against Le and the conduct
of which he stood accused. While Le in his briefing contends it would not have been “
11
‘irrational’ ” for him to risk additional prison time in order to avoid removal from the
United States, he points to no evidence in the record that he would have done so. Le’s
failure to ask for more time to consider the immigration consequences after learning the
convictions could make him deportable and his failure to ask any questions either of his
attorney or the trial court on this topic support the trial court’s finding that an earlier or
more complete immigration discussion would not have affected Le’s willingness to enter
into the plea bargain.
For these reasons, we conclude that the trial court acted within its discretion in
denying Le’s motion to withdraw his no contest plea.
B. Ineffective Assistance of Counsel
Le argues that he entered his no contest plea as a result of defense counsel’s
ineffective assistance. Specifically, Le contends that his defense counsel provided
prejudicially ineffective assistance by failing to give him more time to consider the
potential immigration consequences of his plea, by not providing accurate legal advice
about whether his convictions would result in his removal from the country, and by not
attempting to negotiate a different plea bargain with more favorable immigration
consequences.
“The test for ineffective assistance of counsel is a demanding one.” (People v.
Acosta (2018) 28 Cal.App.5th 701, 706.) The claim requires a showing that defense
counsel’s performance fell below an objective standard of reasonableness and that the
defendant was prejudiced by the deficient performance. (Strickland v. Washington
(1984) 466 U.S. 668, 687.) The defendant bears the burden of demonstrating deficient
performance by a preponderance of the evidence. (In re Thomas (2006) 37 Cal.4th 1249,
1257.) To establish prejudice based on incompetent advice regarding whether to plead
guilty, the defendant must show “a reasonable probability that, but for counsel’s
incompetence, [he or she] would not have pleaded guilty and would have insisted on
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proceeding to trial.” (In re Alvernaz (1992) 2 Cal.4th 924, 934; see also Lafler v. Cooper
(2012) 566 U.S. 156, 163.)
We do not consider whether Le’s counsel provided deficient performance, because
we conclude on this record he cannot show prejudice. The trial court found that Le had
not carried his burden of showing that he would have gone to trial and faced a potential
life sentence instead of accepting a five-year offer had he been more fully informed of the
immigration consequences of his conviction. While Le in this court attacks that
conclusion—contending the trial court paid insufficient attention to the timing of when
Le learned of the potential serious immigration consequences—Le has not persuaded us
that but for defense counsel’s actions, he would not have entered into the plea agreement.
For these reasons, we reject Le’s claim that he was deprived of his right to the
effective assistance of counsel.
III. DISPOSITION
The judgment is affirmed.
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______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P.J.
____________________________________
Grover, J.
H047423
People v. Le