People v. Ayala CA4/2

Filed 4/15/21 P. v. Ayala CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E074910

v. (Super.Ct.No. RIF079501)

JOSE MARIA AYALA, JR., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Reversed and remanded with directions.

Law Offices of Anthony J. Pullara and Anthony J. Pullara for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and James H.

Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

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 Defendant and appellant Jose Maria Ayala, Jr., appeals from the trial court’s order

denying his Penal Code1 section 1473.7 motion to vacate his guilty plea and conviction.

He argues the trial court erred by denying the motion because when it denied the motion

it improperly focused on the effectiveness of his counsel and failed to consider whether

he meaningfully understood the adverse immigration consequences of his plea. He also

asserts that this court should direct the trial court to grant his motion because he met his

burden of proving prejudicial error that damaged his ability to meaningfully understand

the adverse immigration consequences of his guilty plea. The People agree that the trial

court erred in focusing on the effectiveness of his counsel but argue the matter should be

remanded for the trial court to reconsider the motion. Because the trial court applied an

improper standard, we agree with the parties that the trial court erred in denying

defendant’s motion and find the appropriate remedy in this case is to reverse the decision

and remand for the superior court to reconsider the motion under the proper standard in

the first instance.

FACTUAL AND PROCEDURAL HISTORY

Defendant is a citizen of Guatemala. He entered the United States in 1992 with

his parents when he was 14 years old. He became a lawful permanent resident in

November 1992. Defendant taught himself English and completed high school. He was

working two part-time jobs while attending college and lived with his family in the

United States.

1 All future statutory references are to the Penal Code.

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 On February 24, 1998, defendant, who was 19 years old at the time, and his

girlfriend had an argument in the passenger compartment of defendant’s truck. The truck

was parked in front of defendant’s girlfriend’s home. During the altercation, defendant

physically struck his girlfriend, and at one point, his girlfriend got out of the truck.

Defendant then locked the truck’s doors, preventing his girlfriend from getting back into

the truck. Defendant’s girlfriend walked around the truck, got into the truck’s open bed,

sat down, slapped the rear window, and yelled at defendant, “ ‘[L]et’s go.’ ” Defendant

aggressively drove off, causing his girlfriend to fall out of the truck’s bed. Defendant

stopped the truck and attempted to help his girlfriend, but she passed away from a head

injury.

On April 2, 1999, defendant pleaded guilty to voluntary manslaughter (§ 192,

subd. (c)(1)). Among the terms and conditions of the plea agreement, defendant was

promised that the maximum sentence would not exceed two years, and if there was a

favorable recommendation by the probation department, the People would not oppose a

grant of probation. In his change of plea form, in relevant part, defendant acknowledged,

“If I am not a citizen of the United States, I understand that this conviction 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.” The record does not contain the

reporter’s transcript of the April 2, 1999 change of plea hearing. In addition, although

represented by an attorney during the plea hearing, no information exists in the record as

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to the quality of that representation, including whether defendant’s counsel had advised

defendant of the adverse immigration consequences.

The probation department prepared a probation report on May 12, 1999. That

report did not address potential immigration consequences to defendant. However, the

probation report noted defendant’s statement that he had moved to California from

Guatemala seven years earlier with his parents when he was 14 years old and that he was

“registered with Immigration and Naturalization Service and [was] not due to renew his

papers until 2002.” The probation report recommended denial of probation and

imposition of a two-year prison term to be served at the California Youth Authority.

On July 16, 1999, the trial court denied probation and sentenced defendant to

two years in state prison.

On July 6, 2000, the United States Department of Justice initiated immigration

removal proceedings against defendant, citing defendant’s conviction for an “aggravated

felony.” Defendant subsequently filed a section 1016.5 motion to withdraw his guilty

plea based on ineffective assistance of counsel. He claimed that when he pleaded guilty,

his attorney failed to advise him of the actual immigration consequences of his plea. The

trial court denied the motion. The court reasoned that during the change of plea hearing,

defendant acknowledged that he had discussed the change of plea form, which included

potential immigration consequences, with his attorney, and defendant agreed that he had

read and understood those consequences. The court further noted that defendant’s

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attorney had declared on the change of plea form that he was confident defendant

understood the potential consequences of his change of plea.

Approximately 19 years later, on October 21, 2019, defendant filed a motion to

vacate his guilty plea and conviction pursuant to section 1473.7. Defendant requested

that the court vacate the two-year prison term, order a new probation report, and then

resentence him. He asserted that a new probation report would permit the probation

department an opportunity to address potential immigration consequences in its report so

that the court could consider those consequences at sentencing.

In support of his motion, defendant filed his own supporting declaration, declaring

that when he pleaded guilty, and when he was interviewed by the probation department

for the probation report, and at sentencing, he did not understand that if the sentencing

court chose against a grant of probation and ordered a prison term, his deportation would

become mandatory. Defendant clarified in his motion that even if relief was not

warranted under section 1016.5, because he had “received the standard immigration

advisement” as required by law, he was still entitled to relief under section 1473.7 if he

could demonstrate that he had suffered prejudice by way of his own ignorance or

mistake. Defendant also declared that in the 20 years since his conviction, he had

“focused on being a good father and family member, a productive member of [his]

community, and [had] lived an honest and productive life.” He had three children and a

partner, who all lived in the United States, and worked full-time for his family’s business.

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 Defendant’s motion also included a declaration from defendant’s immigration

attorney, as well as a declaration from his former trial attorney. Defendant’s immigration

attorney, in pertinent part, averred that had defendant received probation and a sentence

of less than one year, his conviction would not have been an aggravated felony and he

would not have been deported. Defendant’s trial attorney declared that his representation

of defendant “concluded over 20 years ago,” he no longer had his file or notes, and that

he had “no specific recollection of the case” or the “details of any immigration advice” he

would have given defendant.

The trial court heard the motion on February 21, 2020. Defendant’s counsel

argued that defendant had suffered prejudice by way of his complete misunderstanding,

at the time of his change of plea and at the time of his sentencing, of the reality that he

would be deported if sentenced to state prison. Defense counsel also asserted that the

record showed the probation officer and the sentencing court were unaware of the serious

immigration consequences faced by defendant should he receive a prison sentence.

Specifically, the probation officer noted that defendant was a “lawful permanent resident”

and that his residency was “good for another two years,” but then recommended a prison

sentence without notifying the sentencing court that acceptance of this recommendation

would cause “mandatory deportation.”

The prosecutor argued that the issue had “already been litigated” and that

defendant had properly been advised of the immigration consequences of his plea at the

time he pleaded guilty. The prosecutor also claimed that nothing in defendant’s motion

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demonstrated that the probation department or the sentencing court misunderstood the

immigration consequences facing defendant and questioned if section 1473.7 even

permitted the relief sought. The prosecutor specifically stated, “And I’m not even sure if

this vehicle is the proper way to achieve this type of resentencing that he’s seeking to

achieve.”

The trial court agreed with the prosecutor and denied defendant’s section 1473.7

motion. Before denying the motion, the court noted that “this case has a history”

regarding “advisement of the defendant[,]” and there had been “a challenge to the

effectiveness of counsel and that challenge was denied.” Following the court’s denial,

defense counsel asked to be heard. The court responded, “No. You’ve been heard. You

briefed it. Both sides have been heard. The motion is denied.” Defendant subsequently

filed a timely notice of appeal.

DISCUSSION

Defendant argues the trial court erred in denying his section 1473.7 motion to

vacate his guilty plea and conviction because when it denied the motion it improperly

focused on the effectiveness of his counsel and failed to consider whether he

meaningfully understood the adverse immigration consequences of his plea. The People

agree, and requests we reverse and remand the matter for the superior court to reconsider

defendant’s motion. Defendant, on the other hand, requests that we should direct the trial

court to grant his motion because he had met his burden of proving prejudicial error that

damaged his ability to meaningfully understand the adverse immigration consequences of

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his guilty plea. He believes that a new hearing is not necessary, that we can make

credibility determinations whether he demonstrated prejudicial error by a preponderance

of the evidence, and that the People had the opportunity to supplement the record with the

sentencing hearing transcript as well as any sentencing briefs.

A. STANDARD OF REVIEW

The interpretation of a statute is a question of law subject to de novo review.

(People v. Fryhaat (2019) 35 Cal.App.5th 969, 975-976.) Where a section 1473.7

motion “asserts statutory error or a deprivation of statutory rights,” as opposed to a

violation of the constitutional right to counsel, we review the order denying the motion

for abuse of discretion. (People v. Rodriguez (2019) 38 Cal.App.5th 971, 977; see

People v. Patterson (2017) 2 Cal.5th 885, 894 [order under section 1018 permitting

withdrawal of guilty plea reviewed for abuse of discretion]; People v. Superior Court

(Zamudio) (2000) 23 Cal.4th 183, 192 [order on motion to vacate conviction under

section 1016.5 reviewed for abuse of discretion].)

“Accordingly, we ask whether the trial court’s findings of fact are supported by

substantial evidence, whether its rulings of law are correct, and whether its application of

the law to the facts was neither arbitrary nor capricious.” (People v. Superior Court

(Humberto S.) (2008) 43 Cal.4th 737, 746.) We do not reweigh the evidence. (People v.

Tapia (2018) 26 Cal.App.5th 942, 951.) We also do not reassess witness credibility but

defer to the trial court’s credibility determinations. (Id. at pp. 951, 953; People v. Harris

(2015) 234 Cal.App.4th 671, 695.)

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 B. SECTION 1473.7

Former section 1473.7, subdivision (a)(1), which became effective on January 1,

2017, allowed “[a] person no longer imprisoned or restrained” to file a motion to vacate a

conviction or sentence if “[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.” (Stats. 2016, ch. 739, § 1.) “Courts routinely interpreted the

new statute to mean that in order to vacate a conviction, a person had to prove an

ineffective assistance of counsel (IAC) claim under well-established standards.

(Strickland v. Washington (1984) 466 U.S. 668 (Strickland).)” (People v. Mejia (2019)

36 Cal.App.5th 859, 861 (Mejia); People v. Camacho (2019) 32 Cal.App.5th 998, 1005

(Camacho).)

The Legislature, however, amended the statute, effective January 1, 2019, “to

provide clarification to the courts regarding Section 1473.7 of the Penal Code to ensure

uniformity throughout the state and efficiency in the statute’s implementation.” (Stats.

2018, ch. 825, § 1, subd. (b); Camacho, supra, 32 Cal.App.5th at p. 1007; Mejia, supra,

36 Cal.App.5th at p. 869.) Of significance here, a sentence was added to

subdivision (a)(1) stating, “[a] finding of legal invalidity may, but need not, include a

finding of ineffective assistance of counsel.” (Stats. 2018, ch. 525, § 2; Mejia, at pp. 862,

869; Camacho, at p. 1006; see People v. DeJesus (2019) 37 Cal.App.5th 1124, 1133.) A

new subdivision, (e)(4), directed, “When ruling on a motion under paragraph (1) of

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subdivision (a), the only finding that the court is required to make is whether the

conviction 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.” (Stats. 2018,

ch. 825, § 2, subd. (e)(4).)

Under the amended section 1473.7, a defendant is no longer required to prove an

ineffective assistance of counsel claim in order to obtain relief. (Mejia, supra, 36

Cal.App.5th at p. 871; Camacho, supra, 32 Cal.App.5th at p. 1008.) Thus, a defendant

no longer must prove that counsel’s representation fell below an objective standard of

reasonableness under prevailing professional norms. (Camacho, at p. 1008.) This means

too that courts are not limited to the standard for prejudice used in ineffective assistance

of counsel claims—“a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different” (Strickland v. Washington (1984)

466 U.S. 668, 694)—when ruling on motions brought under section 1473.7. (Camacho,

at p. 1009.)

“Rather, a superior court is required to make a finding of legal invalidity if the

defendant simply proves by a preponderance of the evidence a ‘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.’ (§ 1473.7, subd. (a)(1).)” (Mejia, supra, 36 Cal.App.5th at

p. 871, italics omitted.) “[T]he focus of the inquiry in a section 1473.7 motion is on the

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‘defendant’s own error in . . . not knowing that his plea would subject him to mandatory

deportation and permanent exclusion from the United States.’ [Citation.]” (Mejia, at

p. 871, italics omitted, quoting Camacho, supra, 32 Cal.App.5th at p. 1009.)

With respect to prejudice, “a ‘prejudicial error’ occurs under section 1473.7 when

there is a reasonable probability that the person would not have pleaded guilty—and

would have risked going to trial (even if only to figuratively throw a ‘ “Hail Mary” ’)—

had the person known that the guilty plea would result in mandatory and dire immigration

consequences. (Lee [v. United States (2017) __ ]U.S. __, [137 S.Ct. 1958, 1967], [‘Lee

has adequately demonstrated a reasonable probability that he would have rejected the

plea had he known that it would lead to mandatory deportation’].)” (Mejia, supra, 36

Cal.App.5th at p. 871, italics omitted; Camacho, supra, 32 Cal.App.5th at pp. 1010-

1011.).) “ ‘[C]ommon sense . . . recognizes that there is more to consider than simply the

likelihood of success at trial. The decision whether to plead guilty also involves

assessing the respective consequences of a conviction after trial and by plea. [Citation.]

When those consequences are, from the defendant’s perspective, similarly dire, even the

smallest chance of success at trial may look attractive.’ (Lee v. United States, supra, [__]

U.S. __, [137 S.Ct. at p. 1966].)” (Mejia, at p. 872; Camacho, at pp. 1010-1011.)

As Camacho discussed, our Supreme Court has found that “ ‘ “[c]riminal

convictions may have ‘dire consequences’ under federal immigration law [citation] and

that such consequences are ‘material matters’ [citation] for noncitizen defendants faced

with pleading decisions.” [Citation.] “[A] deported alien who cannot return ‘loses his

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job, his friends, his home, and maybe even his children, who must choose between their

[parent] and their native country . . . .’ ” [Citation.] Indeed, a defendant “may view

immigration consequences as the only ones that could affect his calculations regarding

the advisability of pleading guilty to criminal charges” [citation], such as when the

defendant has family residing legally in the United States. “Thus, even before the

Legislature expressly recognized [in section 1016.5, subdivision (d)] the unfairness

inherent in holding noncitizens to pleas they entered without knowing the consequent

immigration risks [citation], we held that justice may require permitting one who pleads

guilty ‘without knowledge of or reason to suspect [immigration] consequences’ to

withdraw the plea.” [Citation.]’ ” (Camacho, supra, 32 Cal.App.5th at p. 1010, quoting

People v. Martinez (2013) 57 Cal.4th 555, 563.)

C. ANALYSIS

The record here demonstrates that the trial court erroneously interpreted

section 1473.7, as many courts did prior to its amendment in January 2019, as requiring

defendant to show that when he pleaded guilty in 1999, his counsel’s performance, when

advising him as to immigration consequences, fell below an objective standard of

reasonableness. The prosecutor incorrectly pointed the trial court to the issue of

defendant’s trial counsel’s effective assistance, stating the issue had “already been

litigated” 20 years earlier. The trial court agreed, noting “there was a challenge to the

effectiveness of counsel and that challenge was denied,” and denied defendant’s

section 1473.7 motion. Although defendant’s immigration counsel had correctly framed

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the issue in the moving papers and at the hearing by pointing to the amendment to

section 1473.7, the trial court did not address that issue.

The parties agree that the trial court erred by focusing on the effective assistance

of counsel at the hearing on defendant’s section 1473.7 motion. We agree that despite

defendant’s immigration attorney noting the amendment to section 1473.7, the court’s

explanation of its denial of the motion reflects its focus on the trial attorney’s conduct

and influence of ineffective assistance of counsel standards. However, the parties

disagree as to the appropriate remedy in this case. In response to defendant’s argument

that his section 1473.7 motion should have been granted based on his declarations, the

People argue the matter should be remanded for the trial court to reconsider the motion in

light of the analysis of the Camacho court. We agree that remanding the matter to

reconsider defendant’s section 1473.7 motion is the appropriate disposition in this case.

In contrast to the trial court’s focus on the trial attorney’s conduct, Camacho and

Mejia direct focus on “ ‘defendant’s own error in . . . not knowing that his plea would

subject him to mandatory deportation and permanent exclusion from the United States.’

[Citation.]” (Mejia, supra, 36 Cal.App.5th at p. 871, italics omitted, citing Camacho,

supra, 32 Cal.App.5th at p. 1009.) Contrary to defendant’s contentions, the trial court

should have the opportunity to reassess the motion in accordance with the guidance of the

Camacho and Mejia courts as to the amended section 1473.7.

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 DISPOSITION

The order denying the section 1473.7 motion is vacated and the matter remanded

for reconsideration in light of Camacho and Mejia.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.
We concur:

McKINSTER
Acting P. J.

FIELDS
J.

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