Filed 2/16/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076917
Plaintiff and Respondent,
v. (Super. Ct. No. SCN228835)
JUAN ROMERO RODRIGUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Harry M. Elias, Judge. Reversed and remanded with directions.
Shay Dinata-Hanson for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.
Ragland and Adrian Contreras, Deputy Attorneys General, for Plaintiff and
Respondent.
In 2007, Juan Romero Rodriguez, a non-citizen, entered a plea
agreement in San Diego County that avoided any adverse immigration
consequences. After the plea was entered, but before sentencing, Rodriguez
was arrested and jailed for another crime in Riverside County. As a result of
that arrest, Rodriguez did not appear at the scheduled sentencing hearing.
He later agreed to be sentenced in absentia, and the court imposed a sentence
subjecting Rodriguez to deportation.
Deportation proceedings were initiated after Rodriguez’s release from
custody and remain ongoing. In 2019, after amendments to Penal Code
section 1473.7,1 Rodriguez filed a motion under the law seeking to vacate his
conviction on the grounds that he had not been sufficiently advised of the
immigration consequences he faced. After an evidentiary hearing, the court
denied the motion. Rodriguez challenges that decision, asserting the court
erred by finding he meaningfully understood he would become deportable as
a result of the plea. We conclude the evidence supported Rodriguez’s motion.
We thus reverse and remand with directions to the trial court to grant
Rodriguez’s motion to vacate the conviction.
FACTUAL AND PROCEDURAL BACKGROUND
In 1986, before his first birthday, Rodriguez was brought to the United
States from Mexico by his parents. He became a lawful permanent resident
in 2006. In 2007, Rodriguez was arrested several times, three in Riverside
County and once in San Diego County. The sentence he received as a result
of the San Diego arrest, which occurred in May 2007 at the San Clemente
Border Patrol checkpoint, is the subject of this appeal. Around 7:00 a.m. the
day of the arrest, Rodriguez was stopped by an agent at the checkpoint, who
noticed an open container of alcohol in the truck Rodriguez was driving.
When he was stopped, Rodriguez seemed confused and did not know where
he was or where he was coming from.
The agent directed Rodriguez to a secondary inspection, where border
patrol discovered the truck Rodriguez was driving had been reported stolen a
few days earlier. Rodriguez told the agents the truck was known to be stolen,
1 Subsequent undesignated statutory references are to the Penal Code.
2
but “everybody drives it.” Rodriguez was arrested and the agents found a
glass pipe and a small amount of marijuana in his pockets. The border patrol
agents released Rodriguez to the California Highway Patrol (CHP). After
agreeing to waive his Miranda rights, Rodriguez told the investigating CHP
officer that he knew the truck was stolen, and that any key would start the
ignition. He took the truck to a party, then got lost on his way home.
Rodriguez said he planned to abandon the truck by his home.
Rodriguez was eventually charged with four criminal counts related to
the incident: (1) taking and driving a vehicle (Veh. Code, § 10851, subd. (a));
(2) withholding a stolen vehicle (§ 496, subd. (d)); (3) possession of narcotics
paraphernalia (Health & Saf. Code, § 11364); and (4) possession of marijuana
(Health & Saf. Code, § 11357, subd. (b)). Prior to trial, Rodriguez’s defense
counsel, deputy public defender David Thompson, began negotiations with
the district attorney for a plea agreement. Thompson was aware of
Rodriguez’s immigration status and had experience dealing with the
collateral immigration consequences of criminal convictions. Thompson
obtained an agreement in which Rodriguez would plead guilty to unlawfully
taking and driving a vehicle (Veh. Code, § 10851, subd. (a)) and receive
probation, with no more than 120 days in local custody. The sentence
avoided any negative immigration consequences.
Before the plea was entered, however, Thompson was transferred to a
different office and Rodriguez’s case was reassigned to a new deputy public
defender, Ann Michelle Chhokar. At a hearing on September 10, 2007,
Rodriguez, represented by Chhokar, entered the guilty plea pursuant to the
negotiated agreement. The preprinted change of plea form signed by
Rodriguez contained a provision, which he initialed, stating “I understand
that if I am not a U.S. citizen, this plea of Guilty/No Contest may result in
3
my removal/deportation, exclusion from admission to the U.S. and denial of
naturalization.” On the form, the word “may” was crossed out and the word
“will” was written in to say, “will result in my removal/deportation ....” In
addition, Rodriguez initialed a provision stating he understood he could
receive a maximum punishment of up to three years in state prison.2
The trial court referred the matter to the probation department for a
sentencing report and set the sentencing hearing for October 9, 2007. Before
that date, Rodriguez was taken into custody in Riverside County on other
charges. As a result, Rodriguez failed to appear at the October 9, 2007
hearing. Before any additional proceedings in the San Diego case occurred,
Rodriguez was convicted of second-degree burglary in the Riverside case and
sentenced to 16 months in state prison.
On January 15, 2008, Chhokar sent a letter to Rodriguez in prison,
stating, “I have spoken to your lawyer who represented you in Riverside
County. I know your cases have been resolved there but you still need to take
care of your case in San Diego County. You need to fil[l] out a 1381 demand
form so that I may handle your case here where you plea to unlawfully taking
and driving a vehicle. I can handle this matter without you being
transported to San Diego if you want that. Please fill out a 1381 demand and
2 The back of the form also contained a preprinted list of aggravated
felonies and stated that “any conviction of a non-citizen for an ‘aggravated
felony’ as defined under 8 U.S.C. 1101(a)(43), will result in
removal/deportation, exclusion, and denial of naturalization. [¶] ‘Aggravated
Felonies’ include, ... [¶] . . . [¶] ... Theft (Any type or amount)*…[¶]…*Where
the term imposed is at least one year, whether or not any or all of that term
is stayed or suspended at the time of sentencing.”
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send it to me ....”3 Chhokar also asked Rodriguez to let her know if he
wanted to appear in court for his sentencing and stated that “[y]ou will be
sentenced to concurrent time what you are serving now. Your sentence here
will not increase your time in custody.”
Rodriguez sent Chhokar a letter instructing her to handle the matter
without transporting him to San Diego and enclosing the section 1381 form.
On February 27, 2008, the court sentenced Rodriguez to 16 months in prison,
elevating his conviction to an “aggravated” felony under the federal
immigration laws and subjecting him to deportation. Rodriguez, however,
continued to believe he was sentenced according to his plea agreement. On
July 1, 2008, the U.S. Department of Homeland Security issued Rodriguez a
Notice to Appear. The notice stated Rodriguez had become removable
because he had been “convicted of two crimes involving moral turpitude not
3 Section 1381 provides in relevant part: “Whenever a defendant has
been convicted, in any court of this state, of the commission of a felony or
misdemeanor and has been sentenced to and has entered upon a term of
imprisonment in a state prison ..., and at the time of the entry upon the term
of imprisonment or commitment there is pending, in any court of this state,
any other indictment, information, complaint, or any criminal proceeding
wherein the defendant remains to be sentenced, the district attorney of the
county in which the matters are pending shall bring the defendant to trial or
for sentencing within 90 days after the person shall have delivered to said
district attorney written notice of the place of his or her imprisonment or
commitment and his or her desire to be brought to trial or for sentencing
unless a continuance beyond the 90 days is requested or consented to by the
person, in open court, and the request or consent entered upon the minutes of
the court in which event the 90-day period shall commence to run anew from
the date to which the consent or request continued the trial or sentencing. In
the event that the defendant is not brought to trial or for sentencing within
the 90 days the court in which the charge or sentencing is pending shall, on
motion or suggestion of the district attorney, or of the defendant ..., or on its
own motion, dismiss the action....”
5
arising out of a single scheme of criminal misconduct,” citing his conviction in
this case and the Riverside burglary conviction.4
In 2019, Rodriguez retained counsel and filed a motion to vacate his
San Diego County conviction under section 1473.7. Rodriguez argued
Chhokar had provided ineffective assistance of counsel by: (1) failing to
investigate and accurately advise him about all of the immigration
consequences of his plea; (2) failing to negotiate an immigration neutral plea
deal; and (3) going forward with the section 1381 demand to be sentenced in
absentia to a 16-month prison term. Rodriguez further argued that even if
Chhokar’s representation did not rise to ineffective assistance, it nevertheless
constituted prejudicial error that prevented Rodriguez from meaningfully
understanding, defending against, or knowingly accepting the immigration
consequences of his plea and sentence.
Rodriguez submitted a declaration in support of his motion, explaining
his strong relationship to this country, lack of any relationship to Mexico, and
stating that if he had understood that he faced deportation, he would have
taken the case to trial or negotiated a sentence with increased incarceration
to avoid that collateral consequence. Rodriguez also stated his defense
counsel never informed him “that being sentenced in absentia to 16 months
[in] prison would lead to deportation.” The District Attorney opposed the
motion, asserting it was untimely, that Rodriguez had been properly advised
of the potential immigration consequences of the plea agreement, as
evidenced by the plea change form, and that Rodriguez, therefore, could not
show ineffective assistance of counsel on this basis.
4 The actual basis for removal, however, appears to be the San Diego
conviction for theft with a sentence of more than one year in prison.
6
The trial court conducted an evidentiary hearing on the motion, taking
testimony from Rodriguez, Thompson, and Chhokar. Rodriguez recalled he
was represented by two different attorneys, and that Thompson told him he
would try to get him a deal that would not affect his immigration status.
Rodriguez testified he did not understand that the plea agreement contained
a disclosure provision indicating he could be sentenced to up to three years in
prison, which could subject him to deportation. Rodriguez was not aware he
had received a sentence other than what was contained in the plea
agreement until “way after” he was released from prison. Rodriguez repeated
the assertion he made in his supporting declaration that if he had understood
the immigration consequences, he would not have accepted the sentence.
Thompson testified that he had practiced as an immigration attorney
before working as a public defender and was aware of Rodriguez’s
immigration status. Thompson’s goal was to negotiate a plea agreement that
would avoid the risk of deportation. He also stated that he had reviewed his
files from the case, which contained notes about Rodriguez’s immigration
status that were provided to Chhokar.
Chhokar could not recall Rodriguez’s case. Before the hearing, she
reviewed the public defender’s file and the guilty plea paperwork containing
her signature. She testified the plea deal for probation and 120 days in local
custody was negotiated by Thompson. Chhokar stated it was her custom and
practice to review the change of plea form with the defendant, and to address
any questions or concerns before they signed. Chhokar also testified that her
notes indicated that prior to the plea entry, she was aware Rodriguez had a
case in Riverside in which he was sentenced to 36 weekends. After entry of
the guilty plea, and prior to sentencing, her notes showed she was also aware
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that Rodriguez had a second case in Riverside for which he was serving 16
months in prison.
After argument, the court denied the motion. It concluded that
Rodriguez was informed of and aware of the immigration consequences of his
plea agreement and that his counsel did everything they could to obtain an
immigration neutral plea agreement. The court noted the unusual sequence
of events and encouraged Rodriguez to appeal its decision. The court framed
the issue as whether counsel, “knowing when [Rodriguez] finally came up for
sentencing that a state prison [term] would have a negative immigration
consequence, [should] have ... gone forward on a 1381 demand to be
sentenced in absentia ....”
DISCUSSION
I
In Padilla v. Kentucky (2010) 559 U.S. 356, the United States Supreme
Court made clear that defense counsel are under a constitutional obligation
to understand and accurately advise defendants about the immigration
consequences of a guilty plea. (Id. at p. 374.) This obligation had long been
the law in California. (See § 1016.2, subd. (a) [“California courts also have
held that defense counsel must investigate and advise regarding the
immigration consequences of the available dispositions, and should, when
consistent with the goals of and informed consent of the defendant, and as
consistent with professional standards, defend against adverse immigration
consequences (People v. Soriano [(1987)] 194 Cal.App.3d 1470 ..., People v.
Barocio [(1989)] 216 Cal.App.3d 99 ..., People v. Bautista [(2004)] 115
Cal.App.4th 229....”].) In 2016, the California Legislature codified the rule in
section 1016.2. Recognizing that deportation “may be by far the most serious
penalty flowing from the conviction,” the statute requires “defense counsel to
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provide affirmative and competent advice to noncitizen defendants regarding
the potential immigration consequences of their criminal cases.” (§ 1016.2,
subds. (c), (a).)
In 2017, the legislature enacted section 1473.7, creating a mechanism
to allow individuals who are no longer imprisoned to move to vacate a
conviction or sentence on the ground 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.”5 (§ 1473.7, subd. (a)(1).) In 2019, the statute was amended to
eliminate a requirement imposed by decisional law that the defendant also
prove ineffective assistance of counsel as defined by Strickland v. Washington
(1984) 466 U.S. 668, 688, 694. (People v. Ruiz (2020) 49 Cal.App.5th 1061,
1066; see also People v. Camacho (2019) 32 Cal.App.5th 998, 1005 (Camacho),
reh’g denied (Mar. 25, 2019), review denied (June 12, 2019) [“In the two years
that followed the enactment of section 1473.7, California courts uniformly
assumed ... that moving parties who claim prejudicial error was caused by
having received erroneous or inadequate information from counsel, must
demonstrate that counsel’s performance fell below an objective standard of
reasonableness under prevailing norms, as well as a reasonable probability of
a different outcome if counsel had rendered effective assistance.”].) The
modified statute states that “[a] finding of legal invalidity may, but need not,
include a finding of ineffective assistance of counsel.” (Ibid.)
5 The statute contains two additional basis to vacate a conviction. A
defendant can obtain relief if there is “[n]ewly discovered evidence of actual
innocence” or if “[a] conviction or sentence was sought, obtained, or imposed
on the basis of race, ethnicity, or national origin in violation of subdivision (a)
of Section 745.” (§ 1473.7, subd. (a)(2), (3).)
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Under section 1473.7, the trial court must “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).” (§ 1473.1, subd. (e)(1).) A defendant requesting
relief under section 1473.7 bears the burden of establishing by a
preponderance of evidence that there is a reasonable probability that he or
she would not have entered into the plea agreement if he or she had
meaningfully understood the associated adverse immigration consequences.
(Camacho, supra, 32 Cal.App.5th at pp. 1011–1012; People v. Mejia (2019) 36
Cal.App.5th 859, 866 [“[t]he key to the statute is the mindset of the
defendant ... at the time the plea was taken”]; People v. DeJesus (2019) 37
Cal.App.5th 1124, 1133–1134 [Error defined as conduct “that damaged [the
defendant’s] ability to meaningfully defend against the actual or potential
adverse immigration consequences of his plea.”].) “A fact is proved by a
preponderance of the evidence if ... it is more likely than not that the fact is
true.” (People v. Gonzales (2017) 16 Cal.App.5th 494, 500.)
The parties agree the independent review standard applies to this
court’s decision. Under this standard, “[w]e accord deference to the trial
court’s factual determinations if supported by substantial evidence in the
record, but exercise our independent judgment in deciding whether the facts
demonstrate trial counsel’s deficient performance and resulting prejudice to
the defendant.” (People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76; see also
People v. Vivar (2019) 43 Cal.App.5th 216, 224, review granted on other
grounds (Mar. 25, 2020, S260270).)
II
The trial court concluded that Rodriguez had sufficient knowledge of
the potential for deportation because the change of plea form entered on
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September 10, 2007 contained a provision, which Rodriguez initialed, that
stated, “I understand that if I am not a U.S. citizen, this plea of Guilty/No
Contest will result in my removal/deportation, exclusion from admission to
the U.S. and denial of naturalization.” (Emphasis added.) The court also
relied on the fact that Chhokar stated it was her practice to review the plea
form with her client. The critical question in this case is whether this
information supported the trial court’s finding that Rodriguez “meaningfully
understood the associated adverse immigration consequences” he ultimately
faced at sentencing. We hold it does not.
As an initial matter, although not conclusive, Chhokar did not have any
independent recollection of her review of the change of plea form with
Rodriguez that would establish that it actually occurred. Rodriguez also did
not recall such a conversation. Even assuming that Chhokar did provide this
information, however, other testimony established the initialed provision
relied on by the trial court to show Rodriguez understood he could be
deported was inaccurate. As both parties now agree, Rodriguez’s change in
plea did not subject him to deportation at the time it was entered. The
evidence substantiated this fact. Specifically, Thompson testified that his
goal before his reassignment had been to negotiate a plea agreement that
avoided any adverse immigration consequence. Rodriguez testified that
Thompson had communicated this information to him and that Chhokar had
said nothing to him about the immigration consequences of his case.
Rodriguez testified he did not believe that he would be deported as a result of
his conviction and sentence in the case. No evidence contradicted these facts.
Chhokar’s testimony that it would have been her practice to review the
provision in the plea form addressing deportation with Rodriguez was
undercut by the fact that the sentence at issue at that time would not have
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an adverse immigration consequence. Contrary to the trial court’s finding,
neither Chhokar’s testimony nor the plea form established that Rodriguez
was aware of the risk of deportation, either when he entered the plea or at
any time before he was sentenced. The evidence before the trial court
established only that at the time Rodriguez entered the plea, he reasonably
believed the conviction would not threaten his immigration status.
With respect to Rodriguez’s knowledge after he entered his guilty plea,
neither Rodriguez nor Chhokar recalled any communication outside the
January 15, 2008 letter and Rodriguez’s written response. The Attorney
General does not argue that the immigration consequences were clearly
communicated to Rodriguez in Chhokar’s letter. Instead, the Attorney
General argues that Rodriguez should have inferred from this communication
that he was being sentenced to more than one year in prison and that adverse
immigration consequences would follow.
The only information contained in the letter about Rodriguez’s
sentence, however, was that he would “be sentenced to concurrent time what
you are serving now” and “[y]our sentence [in San Diego] will not increase
your time in custody.” These statements were not a clear explanation of the
change to Rodriguez’s sentence resulting from his Riverside conviction. Nor
did it convey to Rodriguez that the sentence for which he agreed to plead
guilty was no longer available and that he would be subject to deportation.
In sum, no evidence before the trial court established Rodriguez was
aware of the change in sentence until well after he was sentenced. This lack
of awareness constituted a prejudicial error that damaged Rodriguez’s
“ability to meaningfully understand, defend against, or knowingly accept the
actual or potential adverse immigration consequences of” his guilty plea.
(§ 1473.7, subd. (a)(1); see Camacho, supra, 32 Cal.App.5th at p. 1009
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[defendant’s and his counsel’s misunderstanding of the immigration
consequences of a plea, which defendant did not learn until “after his
conviction was expunged and reduced to a misdemeanor,” were errors
supporting relief under section 1473.7].)
The People argue that the error is not cognizable under section 1473.7
because the sentence was not a result of Rodriguez’s guilty plea, which they
concede was “immigration-safe.” Rather, they argue that Rodriguez became
removable because he “agreed to being sentenced in the San Diego County
case to at least a year of imprisonment after he was convicted of and
sentenced for additional crimes in Riverside County.” As discussed, this
assertion is not supported by the record before this court. Rodriguez believed
he would be sentenced in accordance with the guilty plea he entered on
September 10, 2007. Contrary to the People’s assertion, he was never told
differently.
The Attorney General’s brief responds to this problem by arguing that
Chhokar’s letter, stating that the sentence “ ‘was going to run concurrent’ ”
with the 16-month sentence imposed in Riverside, alerted Rodriguez to the
prison term because (1) of his recent exposure to the criminal justice system;
(2) “one of [his] prior convictions was the same Riverside County burglary
case for which the San Diego County case was ordered to run concurrent”
with; and (3) if Rodriguez truly did not understand, he should not have
agreed to go forward with sentencing. These assertions, however, do not
show Rodriguez understood the consequences of his plea agreement and the
subsequent change to his sentence. Prior involvement in the criminal justice
system does not establish Rodriguez’s knowledge of the immigration
consequences he faced, nor does the existence of another conviction. The
Attorney General’s assertion that Rodriguez would not have agreed to go
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forward with sentencing in absentia if he did not understand the letter is
illogical. Rodriguez’s testimony shows he agreed because he was under the
mistaken belief that he would be sentenced in accordance with the plea.
Given this reasonable belief, Rodriguez had no reason to question Chhokar.
Finally, the Attorney General’s assertion that section 1473.7 does not
apply because the sentence was not the result of Rodriguez’s guilty plea, but
rather the intervening Riverside conviction, is too narrow an interpretation of
the statute. The two events were linked, and Rodriguez’s sentence was
necessarily a result of his earlier plea agreement.6 Had Chhokar explained
the modified sentence Rodriguez faced and its attendant immigration
consequence before the sentence was imposed, Rodriguez could have made an
informed decision to revoke the plea. Chhokar’s obligation to inform her
client of the immigration consequences of his plea did not end once the plea
was entered. (See, e.g. People v. Scott (1994) 9 Cal.4th 331, 351 [“Under
existing law, a defense attorney who fails to adequately understand the
available sentencing alternatives, promote their proper application, or pursue
the most advantageous disposition for his client may be found
incompetent.”].)
6 Rodriguez raises an important point, not within this court’s purview,
but that merits mentioning. The record does not explain on what basis the
sentencing court was authorized to impose a harsher sentence than the one
set forth in the change of plea form. The form did not contain a waiver of
Rodriguez’s right to withdraw the plea. (See People v. Cruz (1988) 44 Cal.3d
1247, see also People v. Vargas (1990) 223 Cal.App.3d 1107 [as a part of the
plea agreement, defendant agrees that should he fail to appear at sentencing,
a greater term can be imposed by the sentencing court]; § 1192.5 [defendant
“cannot be sentenced on the plea to a punishment more severe than that
specified in the plea and the court may not proceed as to the plea other than
as specified in the plea”].)
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The People present no argument concerning the prejudicial effect of
Rodriguez’s mistaken belief concerning his sentence and the evidence before
the trial court amply established its prejudice. (See People v. Martinez (2013)
57 Cal.4th 555, 563 [“That a defendant might reject a plea bargain because it
would result in deportation, exclusion from admission to the United States,
or denial of naturalization is beyond dispute.”].) Thus, we conclude
Rodriguez is entitled to relief under section 1473.7.
DISPOSITION
The order is reversed, and the case is remanded with directions to the
trial court to grant Rodriguez’s motion to vacate the conviction.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
O’ROURKE, J.
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