Filed 2/26/21 P. v. Mora CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B304887
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A886806)
v.
RAMON GOMEZ MORA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Juan Carlos Dominguez, Judge. Affirmed.
Douglas Jalaie 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, Supervising
Deputy Attorney General, and Rama R. Maline, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Ramon Gomez Mora pleaded guilty to a drug offense in
1992. Almost 30 years later, he moved to vacate his conviction,
arguing he would not have pleaded guilty had he known the
immigration consequences of his plea. The trial court denied
Mora’s motion. We affirm. Undesignated statutory citations are
to the Penal Code.
I
Mora has given us a slim record. We have no
documentation from the underlying criminal proceedings other
than some largely illegible minute orders and abstracts of
judgment. We separately obtained Mora’s largely illegible guilty
plea from the Los Angeles Superior Court; inexplicably, this
document was missing from the Clerk’s Transcript.
We recount facts we can decipher from the meager record
Mora has supplied.
On November 23, 1992, Mora pleaded guilty to a single
count for violation of Health and Safety Code section 11350,
subdivision (a). The abstract of judgment says “poss cocaine”
next to this count. We have no transcript or other description of
the plea hearing. The court sentenced Mora to 90 days in jail
plus three years of probation. Mora had 49 days of custody
credits at the time.
About a year later, in 1993, Mora apparently violated
probation and was ordered to serve a low term of 16 months in
prison.
On October 28, 2019, nearing three decades after his
conviction, Mora filed a motion to vacate the conviction under
section 1473.7. This appeal concerns that motion.
Mora’s motion argued his trial counsel never addressed
immigration consequences with him and Mora did not
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meaningfully understand the immigration consequences of his
plea. The motion maintained he would have rejected the plea
bargain had he known the consequences. Mora argued his trial
counsel rendered ineffective assistance by failing to counsel him
about possible immigration consequences and by failing to pursue
dispositions offering more promising immigration outcomes.
Mora included his declaration with the motion. This
declaration is brief: one and one quarter pages. Mora declares
he was born in Mexico in 1949, entered the United States in 1971
with a valid visa, and has lived here ever since. He married in
1976. He became a lawful permanent resident in 1992. At some
point (the declaration does not say when), he had three children;
two are U.S. citizens, and the third is a lawful permanent
resident. Mora declared he is almost 70 and is in poor health
after suffering a heart attack. He has not been convicted of any
crime for the past 25 years. He is retired now but was employed
“at the time of the incident.”
Regarding his 1992 plea, Mora declared as follows:
“On the date I pled guilty, I was never explained by my
defense attorney Bernard St. John that pleading guilty to this
type of violation would make me deportable or that I would have
any negative immigration consequences. I was aware that I was
being sentenced 90 days in County Jail and three years of
probation. [¶] I learned about the consequences of my 1992
conviction for the first time in 2012 and filed a Motion to Vacate
under Penal Code Section 1016.5. [¶] I would have never taken
the plea had I known it entailed immigration consequences. . . .
[¶] I certainly would not have pled to these charges had I known
the consequences.”
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Mher Cholakhyan was Mora’s attorney for this motion.
Cholakhyan declared he unsuccessfully tried to locate Mora’s
plea-stage attorney. Cholakhyan avers this attorney had a duty
to review the immigration consequences resulting from pleading
guilty and to discuss these consequences with Mora.
Cholakhyan’s declaration argues the earlier attorney could have
taken steps to reduce deportation risks by avoiding a controlled
substance conviction; by pursuing “safer” pleas like driving under
the influence, trespass, and theft; by pursuing pretrial diversion;
and by avoiding any mention of “cocaine” in the record of
conviction. Cholakhyan declared his client is deportable as a
result of the conviction.
A deputy district attorney orally opposed Mora’s motion at
the hearing. This prosecutor represented this was Mora’s third
attempt to withdraw his plea in the past decade. Mora’s earlier
efforts are not in our record.
The deputy district attorney then stated facts about the
underlying crime scene, apparently from a police report to which
he had access. This report is not in our record. The factual
representation was that police found Mora and another person in
a motel room along with a bindle of cocaine of an unspecified
weight, a scale, about $540 cash, and bullets that matched a gun
found outside the room. Mora apparently entered his guilty plea
before a preliminary hearing.
Mora has not disputed these facts, either before the trial
court or on appeal. We thus treat these facts as stipulated.
Mora was present at the hearing, but neither side called
witnesses.
The trial court said the alternative pleas Mora’s counsel
suggested were unrealistic: “[Y]ou said, well, he should have
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tried avoiding controlled substance conviction, meaning, he, the
attorney, by DUI, trespass, and even a theft. That’s not realistic.
That’s totally an unrealistic expectation that any district
attorney—a theft? I wouldn’t—as a judge, I wouldn’t accept a
theft deal on a possession for sale in a motel room with $540 in
cash. We’re talking 1992 with a gun. It’s not gonna happen.
Right?”
The trial court rejected as incredible Mora’s claim he would
have refused the plea deal had he known the immigration
consequences. This claim came almost 30 years after the plea,
and the court noted “everyone” says they would have fought
deportation consequences. Mora made his plea in the 1990s,
“where people were getting pretty heavy sentences for narcotics.”
The plea deal was essentially for time served, and Mora was
avoiding a preliminary hearing and a potential gun charge, which
was no small matter.
Mora appeals this denial of his motion.
II
Courts do not agree on the standard of review for
evaluating a section 1473.7 ruling where, as here, there was no
oral testimony at the hearing. (See, e.g., People v. Vivar (2019)
43 Cal.App.5th 216, 224, review granted Mar. 25, 2020, S260270
(Vivar) [denial of section 1473.7 motion asserting statutory error
reviewed for abuse of discretion]; People v. Olvera (2018) 24
Cal.App.5th 1112, 1116 [employing less deferential mixed
question of law and fact standard]; People v. Ogunmowo (2018) 23
Cal.App.5th 67, 79 [independent review proper where the record
consists solely of written declarations].) We do not enter this fray
because, under any standard of review, we would affirm the trial
court’s denial of Mora’s motion.
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Mora had the burden of establishing his entitlement to
relief by a preponderance of the evidence. (§ 1473.7, subd. (e)(1).)
He failed to carry this burden.
Mora’s plea deal was very attractive: time served, in a
situation where Mora faced far more serious charges because of
the ammunition and gun at the arrest scene. The alternative
deals that Mora’s counsel suggested as possibilities were
extremely unlikely.
Mora has offered no evidence about proof problems
afflicting the prosecution’s case. In other words, there is no
reason to believe Mora stood a chance of acquittal had he gone to
trial. Therefore a plea agreement was Mora’s only hope for
leniency. Had he insisted on trial, he would have suffered a
longer sentence and the adverse immigration consequences he
now decries.
In sum, the trial court thoughtfully gauged Mora’s
bargaining position during his plea negotiations, found it
insubstantial, and dismissed Mora’s convenient and self-serving
assertions in his declaration as illogical and unbelievable. After
examining Mora’s brief declaration and our scanty record, we
independently draw the same conclusions.
“As a general matter, it makes sense that a defendant who
has no realistic defense to a charge supported by sufficient
evidence will be unable to carry his burden of showing prejudice
from accepting a guilty plea.” (Lee v. United States (2017) __ U.S.
__, __ [137 S.Ct. 1958, 1966] (Lee).)
There can be exceptions in exceptional situations, as would
be the case where a prosecutor offered an 18-year sentence and
trial could mean at most a 20-year sentence. (Lee, supra, 137
S.Ct. at pp. 1966–1967.)
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Another exceptional example comes from the facts of the
Lee case itself. Lee lived in the United States for nearly three
decades, established two businesses in Tennessee, and was the
only family member in the United States who could care for his
elderly parents—both naturalized American citizens. Lee proved
he had never returned to his home country. Moreover, Lee’s plea-
stage counsel testified deportation was the determinative issue in
Lee’s decision to take the plea deal. Lee stated in his plea
colloquy that possible deportation would affect his decision about
whether to plead guilty. (Lee, supra, 137 S.Ct. at pp. 1963, 1967–
1968.) Evidence beyond Lee’s self-serving declaration
corroborated his claim that immigration consequences
predominated at the time of his plea.
Mora offers no facts detailing an exceptional situation. He
gives us no basis for second guessing the trial court’s reasonable
evaluation. We similarly reject Mora’s attack.
We do not address Mora’s claim of ineffective assistance of
counsel because his motion fails to show prejudice, which ends
the matter.
III
Mora argues the trial court’s decision must be reversed
because the court was biased against him, or at least the court
made clear it had predetermined to deny the motion. The People
respond that Mora forfeited this claim by not raising it until this
appeal. The People also argue there is no evidence of bias.
This claim has no merit.
Our high court has emphasized that only the most extreme
facts justify judicial disqualification based on the due process
clause. (See People v. Peoples (2016) 62 Cal.4th 718, 787–788.)
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Far from presenting extreme facts, this case involves no
hint of bias. Mora attacks the judge’s comment at the section
1473.7 hearing that “everyone” says they would have fought to
avoid deportation consequences. The trial court’s full statement
is as follows:
“Here’s the problem. This is 1992. Right? So we’re
talking almost 30 years. Yeah? Now, you know, everyone
says, yeah, if I would have done—if I had deportation
consequences, I would have fought it. It’s quite different to
say it 30 years later as opposed to saying it at that time.
“I know he was in custody. He got credit for 49 days
actual, and I think 33 good time/work time. So he’d been in
jail almost two months. So he had time served. And I am
surprised the gun was never charged.”
This is not bias.
In proceedings under section 1473.7, subdivision (a)(1),
literally everyone says they would have rejected a plea that
entails adverse immigration consequences. The statute requires
this. (See § 1473.7, subds. (a)(1) & (e)(1).)
In addition, the court was required to consider the
credibility of Mora’s post hoc statements regarding his
willingness to abandon his plea. (Vivar, supra, 43 Cal.App.5th at
p. 229, review granted.)
The comment Mora attacks was part of this required
credibility determination. The court was noting that saying you
would not have pleaded guilty 30 years after the fact, as Mora did
here, is different—is less credible—than making this statement
close in time to the plea.
The trial court’s comment does not show the court had
prejudged Mora to be untrustworthy or was biased against him.
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DISPOSITION
We affirm the order denying Mora’s motion to vacate his
conviction.
WILEY, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
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