Filed 2/25/21 P. v. Hernandez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B299668
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A962972-01)
v.
MINOR HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David Herriford, Judge. Affirmed.
Tashjian Law and Vatche D. Tashjian for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez, Steven D. Matthews and Paul
S. Thies, Deputy Attorneys General, for Plaintiff and
Respondent.
******
Minor Hernandez (defendant) filed a motion to vacate his
nearly 30-year-old plea to felony drug possession. The trial court
denied his motion. We conclude there was no error and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. Defendant’s background
Defendant was born in El Salvador. He immigrated to the
United States with his mother and sister in 1980 when he was 11
years old.
B. Defendant’s criminal conduct in 1988
In January 1988, while 18 years old, defendant possessed a
small amount of cocaine tucked in a dollar bill in his wallet. He
was arrested.
C. Prosecution, plea and disposition
The People charged defendant with possessing a controlled
substance (Health & Saf. Code, § 11350), as a felony. Defendant
was initially released from custody on his own recognizance as
part of a pre-plea diversion program. After the trial court
terminated the diversion program, the People resumed their
prosecution. In October 1989, defendant pled guilty to the felony
drug possession count in exchange for a probationary sentence
with no further time in custody. Although the reporter’s
transcript of the plea colloquy is no longer available, the court’s
docket reflects that the trial court advised defendant that his
plea could subject him to adverse immigration consequences.
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II. Procedural Background
A. Defendant’s motion for relief
On February 20, 2019, defendant filed a motion to vacate
his 1989 plea under Penal Code section 1473.71 on the ground
that his attorney never advised him of the immigration
consequences of his plea.
In a declaration accompanying his motion and in testimony
he provided at the evidentiary hearing in support of his motion,
defendant stated that (1) he discussed whether to accept the
People’s plea offer for a probationary sentence with his attorney
while he was in a jail cell, and his attorney (a) “never asked
[defendant] about [his] immigration status,” (b) never “advised
[him] of any immigration consequences” flowing from the plea
offer, and (c) did not “present[] . . . any alternative pleas that
would have been immigration safe” (that is, pleas that would
have had fewer adverse immigration consequences); (2) the trial
court did not advise him of the possible immigration
consequences of his plea, or if it did, defendant did not recall such
an advisement; and (3) if he had known that accepting the
People’s plea offer would have had adverse immigration
consequences, he “would not have accepted the plea” and would
have instead gone to trial or “negotiated an immigration safe
plea.”
B. Ruling on motion
The trial court denied defendant’s motion for relief.
The court concluded that defendant did not “me[et] his
burden” of establishing entitlement to relief under section 1473.7.
Specifically, the court rejected as not credible defendant’s
1 All further statutory references are to the Penal Code
unless otherwise indicated.
3
testimony his attorney had never advised him of the immigration
consequences of his plea. The court did not question defendant’s
sincerity, but instead found that defendant’s recollection of the
plea was incomplete and that “what he does remember seems to
be contradicted by the [portions of] the record that we do have.”
In support of its finding, the court pointed to (1) defendant’s
insistence that he was in custody at the time he entered his plea,
when the court’s records showed he was not; (2) defendant’s
outright denial and, in the alternative, his inability to recall
whether the trial court had advised him that his plea could have
immigration consequences, when the court’s records showed he
was so advised; and (3) defendant’s inability to remember
whether his attorney was a man or a woman. “If [defendant]
can’t even remember whether his attorney was a male or a
female,” the court observed, “how much weight can [the court]
put on his memory regarding the circumstances of the plea?” The
court further found that defendant had failed to prove that he
had been prejudiced by his attorney’s failure to negotiate an
immigration-safe plea because defendant admitted his guilt of
the charge to his lawyer and “there really would not be any other
immigration-friendly disposition available” given that the charge
was a felony without any lesser included offenses.2
C. Appeal
Defendant filed this timely appeal.
2 The court also determined that it lacked the authority
under section 1473.7 to grant defendant relief “in the interests of
justice” absent proof—which was lacking here—that he had
misunderstood the immigration consequences of his plea.
Defendant does not assail this determination on appeal.
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DISCUSSION
Defendant argues that the trial court erred in denying his
motion for relief under section 1473.7. Among other things, that
section empowers a trial court to vacate a conviction as “legally
invalid” if (1) the defendant was unable “to meaningfully
understand . . . the actual or potential adverse immigration
consequences of a plea,” and (2) the defendant’s
misunderstanding was prejudicial to his decision to enter the
plea. (§ 1473.7, subd. (a)(1); People v. Camacho (2019) 32
Cal.App.5th 998, 1011-1012 (Camacho).) This showing may be—
but does not have to be—established by proving that the
defendant’s counsel was constitutionally ineffective. (§ 1473.7,
subd. (a)(1) [“A finding of legal invalidity may, but need not,
include a finding of ineffective assistance of counsel”]; People v.
Mejia (2019) 36 Cal.App.5th 859, 871 (Mejia) [so noting].) As the
moving party, the defendant bears the burden of showing the
legal invalidity of his prior conviction by a preponderance of the
evidence. (§ 1473.7, subd. (e)(1); Camacho, at p. 1005.) We
independently review a trial court’s ruling that a conviction is
legally invalid when it is based on the constitutional
ineffectiveness of counsel; we review its ruling on any other basis
for an abuse of discretion. (People v. Ogunmowo (2018) 23
Cal.App.5th 67, 76 (Ogunmowo); People v. Vivar (2019) 43
Cal.App.5th 216, 224 (Vivar).) No matter what the basis,
however, we review the trial court’s factual findings solely to
assure they are supported by substantial evidence in the record.
(Ogunmowo, at p. 76.)
The trial court denied defendant’s motion on two grounds—
namely, that defendant did not prove (1) his lack of
understanding of the immigration consequences of his plea due to
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his counsel’s failure to advise him of those consequences, or (2) he
would have acted differently had he known those consequences.
I. Failure to Prove a Lack of Understanding of
Immigration Consequences Due to Counsel’s Failure to
Advise
The trial court’s determination that defendant failed to
prove a lack of understanding of the immigration consequences of
his plea rests on the court’s finding that defendant’s testimony to
that effect was not to be credited because defendant’s recollection
of his 1989 plea colloquy and the events preceding it was both
incomplete and inconsistent with the available record. This was
a credibility finding. (People v. Lopez (2018) 5 Cal.5th 339, 352
[“‘Inconsistencies in testimony and a failure to remember aspects
of the subject of the testimony. . . present questions of credibility
for resolution by the trier of fact’”], quoting People v. Mincey
(1992) 2 Cal.4th 408, 444.) Because “[i]t is up to the trial court to
determine whether [a] defendant’s assertion[s in support of his
section 1473.7 motion are] credible” (Vivar, supra, 43 Cal.App.5th
at p. 229), we must decline defendant’s implicit invitation to
second guess the trial court’s credibility finding, particularly
where, as here, that finding is based upon the court’s evaluation
of defendant’s in-person testimony and not merely written
testimony set forth in a declaration. (People v. Tapia (2018) 26
Cal.App.5th 942, 953 [“We do not reevaluate witness credibility”];
Ogunmowo, supra, 23 Cal.App.5th at p. 79 [granting “deference”
to trial court’s “credibility determinations” when based on “live
testimony” rather than “written declarations”].)
Nor is there any basis to question the court’s credibility
finding on the limited grounds that disbelieving defendant leads
to a result that is physically impossible or inherently improbable
(see People v. Prunty (2015) 62 Cal.4th 59, 89) because many
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portions of defendant’s testimony were inconsistent with the
available record and with defendant’s litigation position. For
example, defendant claimed that he had no Spanish-language
interpreter at the plea and acknowledged understanding his
rights at his plea only because his attorney told him to say, “yes.”
But such egregious defects with the colloquy would have wholly
invalidated his plea on grounds unrelated to immigration
consequences (see People v. Aguilar (1984) 35 Cal.3d 785, 790;
Cal. Const., art I, § 14), yet defendant did not seek relief on those
grounds for 30-plus years. In sum, the trial court’s finding that
defendant’s recollection was not credible left defendant with no
competent evidence to support his claim that his counsel failed to
advise him of the immigration consequences of his plea, and
hence no basis for relief under section 1473.7—whether due to
ineffective assistance of counsel or otherwise.
II. Lack of Prejudice
Even if we ignore the trial court’s finding that defendant
provided no credible evidence that he lacked a meaningful
understanding of the immigration consequences of his plea, the
court was still correct to deny defendant’s motion for relief under
section 1473.7 because the court did not abuse its discretion in
determining that defendant had also not established he was
prejudiced by his lack of understanding.
To establish prejudice arising from a failure to understand
the immigration consequences of a plea, a defendant must show
that “‘“it is ‘reasonably probable’ that [he] would not have pleaded
guilty if properly advised.”’” (People v. Martinez (2013) 57
Cal.4th 555, 563; accord, Lee v. United States (2017) 137 S.Ct.
1958, 1965 (Lee) [defendant must “demonstrat[e] a ‘reasonable
probability that, but for [this lack of understanding], he would
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not have pleaded guilty and would have insisted on going to
trial’”].) However, a defendant’s “post hoc assertions . . . about
how he would have pleaded but for [his lack of understanding]”
are insufficient to establish prejudice absent “contemporaneous
evidence” that “substantiate[s] [the] defendant’s [subsequently]
expressed preferences.” (Lee, at p. 1967.) Such evidence
includes: (1) the likelihood that defendant would prevail at trial
(because a case with overwhelming evidence ostensibly provides
strong incentive to enter a plea notwithstanding the immigration
consequences), (2) the comparative punishment defendant faced
after a plea vis-à-vis after a trial (because a greater dichotomy in
potential sentences ostensibly provides strong incentive to enter
a plea notwithstanding the immigration consequences), and (3)
whether the defendant, contemporaneous with the plea,
expressed that immigration consequences were important to his
decision-making process (because the absence of such
contemporaneous statements ostensibly shows that the
immigration consequences did not matter to his decisional
calculus). (Id. at pp. 1966-1967.)
Here, all we have is defendant’s “post hoc assertion” that he
would not have pled guilty had he known about the immigration
consequences of his plea. Defendant did not carry his burden of
providing any contemporaneous evidence to substantiate that
assertion. He candidly admitted—to both his lawyer in 1989 and
to the trial court in 2019—that he did, in fact, knowingly possess
the cocaine he was accused of knowingly possessing, so it was
unlikely he would prevail at trial; he therefore had a strong
incentive to plead guilty notwithstanding the immigration
consequences of that plea. The comparative punishment he
faced—a three-year prison sentence versus a probationary
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sentence—was a sufficiently great dichotomy to provide a strong
incentive to plead guilty notwithstanding the immigration
consequences, particularly in light of defendant’s admission that
he “wanted to be out” of custody. And defendant was aware of his
immigration status but did not raise any concerns about that
status with his attorney, which tends to undercut his assertion in
2019 that his immigration status was important to him at the
time of his plea. (Cf. Ogunmowo, supra, 23 Cal.App.5th at p. 79
[contemporaneous evidence present where defendant “sought his
attorney’s counsel about immigration consequences before
entering his guilty plea”].)
Defendant responds that his case is just like Camacho,
supra, 32 Cal.App.5th 998 and Mejia, supra, 36 Cal.App.5th 859.
We disagree on two grounds.
First, Camacho and Mejia are factually distinguishable. In
both Camacho and Mejia, the record contained “compelling”
evidence that the defendant would not have pled guilty despite
the possibility of removal from the United States—namely, that
the defendant in each of those cases had a spouse and a young
child at the time of the plea from whom he would not want to be
separated. (Camacho, supra, 32 Cal.App.5th at pp. 1011-1012;
Mejia, supra, 36 Cal.App.5th at p. 872.) Although defendant is
now married with offspring, at the time of his plea in October
1989, he was a single 19-year-old with no children. The
“compelling” facts in Camacho and Mejia are absent here.
Second, we are reviewing the trial court’s finding of no
prejudice solely for an abuse of discretion, and that finding is
valid under this more deferential standard of review. We are
reviewing solely for an abuse of discretion because defendant did
not establish that his attorney was constitutionally ineffective.
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Defendant’s claim of constitutional ineffectiveness is based
on his allegations that his lawyer (1) did not ask him about his
immigration status, (2) did not inform him of the immigration
consequences of his plea, and (3) did not negotiate an
immigration-friendly disposition. An attorney provides
constitutionally ineffective assistance if (1) his representation
was deficient, and (2) prejudice flows from that deficient
representation. (Strickland v. Washington (1984) 466 U.S. 668,
687.)
The first two allegations, even if true, did not constitute
deficient performance in 1989 because, at that time, defense
counsel had a more limited duty not to misadvise a defendant
regarding the immigration consequences of his plea. (In re
Resendiz (2001) 25 Cal.4th 230, 240, 247 (In re Resendiz),
abrogated in part on other grounds in Padilla v. Kentucky (2010)
559 U.S. 356, 370 (Padilla); People v. Soriano (1987) 194
Cal.App.3d 1470, 1481-1482 (Soriano).) The duty to investigate
and advise a defendant regarding the immigration consequences
of his plea did not arise until the 2010 decision in Padilla, supra,
559 U.S. 356, and Padilla is not retroactive (Chaidez v. United
States (2013) 568 U.S. 342, 344, 357-358). Citing Soriano and
People v. Barocio (1989) 216 Cal.App.3d 99 (Barocio), defendant
responds that the California courts obligated defense counsel to
investigate and to provide advice regarding immigration
consequences as far back as 1987. Although those cases contain
language that supports defendant’s contention, that language is
dicta that sweeps beyond Soriano’s actual holding, which deals
with a misadvisement—namely, the defense attorney gave a “pro
forma” or “formulaic” “caution” that a negotiated sentence may
have immigration consequences when that sentence actually
10
“made [the defendant] deportable.” (Soriano, at pp. 1480-1482;
Barocio, at p. 107 [observing how “Soriano can be limited to its
facts”].) We decline to give effect to Soriano’s dicta when that
dicta makes Soriano an outlier among pre-Padilla case law. (In
re Resendiz, at p. 247 [recognizing “ineffective assistance claims
based on erroneous immigration consequences advice”].)
Defendant’s third allegation—that his lawyer was
ineffective for failing to negotiate an immigration-friendly
disposition—might constitute deficient performance, but is not
prejudicial unless and until the defendant “identif[ies]” an
“immigration-neutral disposition to which the prosecutor was
reasonably likely to agree.” (People v. Olvera (2018) 24
Cal.App.5th 1112, 1118; People v. Perez (2018) 19 Cal.App.5th
818, 830-831.) The trial court found no such disposition existed,
and defendant does not dispute that finding on appeal; instead,
he vacillates between speculating that “many different
dispositions” exist and frankly acknowledging that “we do not
know if an immigration safe bargain would have been
forthcoming.”
Because defendant’s claim for relief is based solely on non-
constitutional grounds, our review is limited to asking whether
the trial court abused its discretion in finding that defendant had
failed to establish he would not have entered a plea had he
known of the immigration consequences of that plea. If Camacho
and Mejia are factually distinguishable when we employ de novo
review, those two cases are not any more compelling under the
more deferential abuse of discretion review.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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