Filed 6/17/21 P. v. Longoria CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079267
Plaintiff and Respondent,
(Super. Ct. No. 15CR-00301)
v.
AUDON SOTO LONGORIA, OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Merced County. David W.
Moranda, Judge.
Law Offices of Michael Poole and Michael Poole for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K.
Indermill, David Andrew Eldridge, and Kari Ricci Mueller, Deputy Attorneys General,
for Plaintiff and Respondent.
-ooOoo-
On May 16, 2014, Audon Soto Longoria, with the assistance of a Spanish
language interpreter, pled guilty to felony assault likely to produce great bodily injury
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(Pen. Code,1 § 245, subd. (a)(4)). The factual basis for the plea was confirmed in open
court. While under the influence of alcohol, Longoria placed his hands around the neck
of his girlfriend, pregnant with their expected child, limiting her ability to breathe.
In lieu of a possible four-year prison term, Longoria was sentenced to 36 months
of probation, with 180 days in custody, and two counts under section 11377,
subdivision (a), and section 243, subdivision (e)(1) were dismissed.
In 2017, the Board of Immigration Appeals determined felony assault is a crime
involving moral turpitude and subjects an individual to deportation. On that basis,
Longoria moved pursuant to section 1473.7 to vacate his guilty plea and argued he did
not know the conviction “provided serious immigration consequences.”
The trial court2 denied Longoria’s motion to vacate, finding Longoria had not met
his burden of proof and otherwise understood the immigration consequences. We affirm.
BACKGROUND
At the change of plea hearing, the court informed Longoria, “With respect to the
consequences of a guilty or no contest plea, you need to know this: If you’re not now a
citizen of the United States, this conviction can and will result in your deportation, a
denial of your right to citizenship in the future by way of naturalization, and a denial of
your right to reenter the United States.” Longoria affirmatively acknowledged the
warning and subsequently pled guilty to felony assault (§ 245, subd. (a)(4).
In a written section 1473.7 motion to vacate, Longoria argued he “did not
meaningfully understand the immigration consequences of []his plea and his attorney did
not defend against the serious immigration consequences because[,] at the time of his
plea, the law was not clear” felony assault was a deportable offense. He also claimed his
1 All undesignated statutory references are to the Penal Code.
2The conviction occurred in Santa Cruz County. The motion to vacate was heard
in Merced County because that is where Longoria’s matter was ultimately transferred.
(See § 1203.9) The venue issue is not raised on appeal.
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“[d]efense attorney could not have provided affirmative and competent advice …
regarding the potential immigration consequences … because the case law was not settled
until after the plea.”
The motion included a declaration from Longoria. In the declaration, Longoria
stated his attorney told him the “conviction should not have serious immigration
consequence[s] since the felony could be reduced to [a] misdemeanor and be expunged.”
He added, had he known the immigration consequences, he would have rejected the plea
bargain and would have pursued a different resolution.
At the motion hearing, Longoria testified and essentially restated his declaration:
Had he known the consequences he “would have waited for another offer or [went] to
trial” because “the most important thing” to him was staying with his “wife and kids” in
the United States. He acknowledged the plea judge provided an immigration warning but
did not hesitate to plead upon hearing it due to his attorney’s indication he should accede
to the warning.
The court denied the motion for two reasons. One, it found Longoria did not meet
the burden of proof. Two, it found he “was informed of the consequences of his plea
[and he] said he understood them.”
DISCUSSION
Section 1473.7 permits a person to “file a motion to vacate a conviction” of “[t]he
conviction is … legally invalid due to 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. A
finding of legal invalidity may, but need not, include a finding of ineffective assistance of
counsel.” (§ 1473.7, subds. (a) & (a)(1).) Prejudicial error “means demonstrating a
reasonable probability that the defendant would have rejected the plea if the defendant
had correctly understood its actual or potential immigration consequences.” (People v.
Vivar (2021) 11 Cal.5th 510, ___, [2021 WL 1726827, at *10] (Vivar).)
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A trial court’s decision to grant or deny a section 1473.7 motion is reviewed
independently. “ ‘[U]nder independent review, an appellate court exercises its
independent judgment to determine whether the facts satisfy the rule of law.’
[Citation.] … ‘ “[I]ndependent review is not the equivalent of de novo review ....” ’
[Citation.] An appellate court may not simply second-guess factual findings that are
based on the trial court’s own observations. [Citations.] … In section 1473.7
proceedings, appellate courts should … give particular deference to factual findings
based on the trial court’s personal observations of witnesses. [Citation.] … Ultimately it
is for the appellate court to decide, based on its independent judgment, whether the facts
establish prejudice under section 1473.7.” (Vivar, supra, 11 Cal.5th at p. ___, [2021 WL
1726827, at *8], fn. omitted.)
“As the United States Supreme Court has observed, ‘Immigration law can be
complex,’ and there are ‘numerous situations in which the deportation consequences of a
particular plea are unclear or uncertain.’ ” (People v. Patterson (2017) 2 Cal.5th 885,
898.) Longoria admits this is a case involving uncertainty but nonetheless seeks to vacate
his plea on the basis his attorney “could not have provided affirmative and competent
advice … because the case law was not settled until after the plea.”3
In our view, it is unclear whether a post-plea change in immigration law is the sort
of prejudicial error contemplated by the Legislature in enacting section 1473.7. We
assume here that Longoria has demonstrated that there was error damaging his ability to
meaningfully understand, defend against, or knowingly accept the actual or potential
immigration consequences of the plea. However, as Vivar and other cases hold, the error
3 In the written motion, Longoria also argued his plea counsel was ineffective for
not “investigating and preparing [his] case and possible immigration consequences” and
for failing to “properly investigate critical questions, facts and legal authorities essential
to his being able to advise defendant to plead guilty.” These arguments are entirely
conclusory, unsupported by any evidence, and not repeated on appeal.
4.
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must also be prejudicial, based upon the totality of the circumstances. Our Supreme
Court in Vivar explains as follows:
“So: showing prejudicial error under section 1473.7,
subdivision (a)(1) means demonstrating a reasonable
probability that the defendant would have rejected the plea if
the defendant had correctly understood its actual or potential
immigration consequences. When courts assess whether a
petition has shown that reasonable probability, they consider
the totality of the circumstances. (Lee [v. Superior Court
(2017)] 137 S.Ct. [1958], 1966 [(Lee)].) Factors particularly
relevant to this inquiry include the defendant’s ties to the
United States, the importance the defendant placed on
avoiding deportation, the defendant’s priorities in seeking a
plea bargain, and whether the defendant had reason to believe
an immigration-neutral negotiated disposition was possible.
(See id. at pp. 1967-1969; ([People v.] Martinez [(2013)]
57 Cal.4th [555,] 568.) (Vivar, supra, 11 Cal.5th at p. ___,
[2021 WL 1726827, at *17].)
Circumstances of the Plea
In January 2019, Longoria filed a motion to withdraw his guilty plea pursuant to
section 1473.7, arguing that he did not meaningfully understand the immigration
consequences of his guilty plea, because (1) his attorney failed to defend him against the
immigration consequences (i.e., find another plea that could have avoided mandatory
deportation or go to a trial with a “Hail Mary”), (2) the law was not clear that a
section 245, subdivision (a)(4) conviction was deportable, and/or the law changed, and
(3) his attorney failed to give accurate advice of potential immigration consequences.
The motion was supported by a two-page declaration from Longoria which essentially
stated the following:
(1) His attorney informed him the plea offer was favorable in
terms of punishment and the conviction should not have
serious immigration consequences since the felony could be
reduced to a misdemeanor and expunged;
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(2) At the time of the plea, he did not know the conviction
could cause inadmissibility years after the plea and become
“disastrous” for him;
(3) His attorney did not provide affirmative and competent
advice to him regarding the potential immigration
consequences in his criminal case;
(4) His attorney did not investigate, advise him on adverse
immigration consequences of the proposed disposition, or
defend against potential adverse immigration consequences of
the guilty plea;
(5) When his attorney presented documents for his signature,
he asked for time to think about it before signing but was told
that if he did not take the offer, the district attorney would not
offer the same deal again;
(6) He did not have an opportunity to speak with anyone
about the immigrations consequences of the plea;
(7) He felt he had viable defenses to the allegations alleged in
the complaint;4
(8) At the time of his plea, he would not have accepted the
plea bargain had he known that conviction of such a charge
would have immigration consequences. The determinative
factor in his decision to accept or reject a plea offer was not
having immigration consequences;
(9) Had he been properly advised, he would have sought to
negotiate a different bargain that would not have resulted in
deportation;5 and
(10) He had strong family, community ties, obligations, and
opportunities in the United States at the time of his plea, and
4 Longoria has never identified any possible defenses to the charges or the
likelihood of success at trial.
5 Longoria has never offered any evidence of a possible immigration-neutral plea
on these facts.
6.
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he and his family would have faced extreme hardship had he
been forced to return to Mexico.
Longoria also briefly testified at the March 2019 hearing that had he known the
immigration consequences, he would not have accepted the plea offer. As an alternative,
“[He] would have waited for another offer or go[ne] to trial, because the most important
thing in this country for [him was his] wife and kids. And to separate us, we would both
suffer, them and myself.”
Longoria also acknowledged under oath at the hearing that he had been advised by
the court prior to entering his plea that he “can and will be deported as a result of the
plea.” He did not respond or ask any questions of the judge “because that’s what my
attorney said to do ….” Longoria said he relied upon his attorney for guidance.
Longoria also asked the court to take judicial notice of records relating to the 2016
disbarment proceedings against his original trial counsel, showing that his lawyer:
(1) Failed to file motions to reduce the felony to a misdemeanor and expunge the
conviction per section 1203.4; and (2) failed to respond to his client’s reasonable status
inquiries over a two-year period.
The trial court denied the motion, finding that Longoria had not met his burden of
proof by a preponderance of the evidence and that he “was informed of the consequences
of his plea. He said he understood them.”
Prejudice Analysis
To establish “prejudicial error” under section 1473.7, a person need only show by
a preponderance of the evidence that: (1) he did not “meaningfully understand” or
“knowingly accept” the actual or potential adverse immigration consequences of the plea;
and (2) had he understood the consequences, it is reasonably probable he would have
instead attempted to “defend against” the charges by rejecting the plea deal, i.e., he was
prejudiced because he did not meaningfully understand the consequences of the plea.
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On the first element, the type of “error” required by section 1473.7, a defendant
need not show Strickland6 error with ineffective assistance of counsel, but only his own
error in not understanding or knowing his plea has actual or potential adverse
immigration consequences. In other words, the “defendant’s own error” in
misunderstanding—or complete failure to anticipate—the immigration consequences of a
plea bargain is an independent basis sufficient to grant relief under section 1473.7.
(People v. Mejia (2019) 36 Cal.App.5th 859, 870-871 (Mejia); People v. Camacho
(2019) 32 Cal.App.5th 998, 1009 (Camacho).)
On the second element, to show prejudice, a defendant must show that had he
understood the consequences, it is reasonably probable he would have instead attempted
to “defend against” the charges by rejecting the plea deal.
In conducting the prejudice analysis, the question is whether Longoria has shown,
by a preponderance of the evidence, that he would not have entered the plea had he
known it would render him deportable. The trial court concluded he had not met his
burden on these issues and that he had been advised of the deportation consequences of
his plea, and said he understood them.
As set forth in Vivar, the main factor in the prejudice analysis is evidence of a
defendant’s strong or significant ties to this country—where the threat of deportation can
outweigh the threat of significant jail time, i.e. evidence supporting the inference that the
defendant would not have pled guilty had he understood he would lose those ties,
particularly his family, as a consequence. This is what is lacking in Longoria’s
declaration and testimony.7
6 Strickland v. Washington (1984) 466 U.S. 668.
7 Compare the conclusory language in Longoria’s evidence in contrast to the
detailed evidence set forth in Vivar, supra, 11 Cal.5th at p. ___ [2021 WL 1726827, at
*9]; Mejia, supra, 36 Cal.App.5th at pp. 872-873; and Camacho, supra, 32 Cal.App.5th
at p. 1011.
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Perhaps most important is the issue of credibility and the role it has played in each
of these cases. The Vivar trial court was examining a cold record, with no live witnesses
or testimony, hence, no real credibility issues were presented when the Supreme Court
independently reviewed the evidence. In Mejia and Camacho, the trial court made no
relevant implied or express credibility determinations, thereby allowing the appellate
court to independent review the evidence. However, in this case, Longoria testified.
Some testimony mirrored his declaration, but the testimony about why he failed to object
or ask questions when he was read the deportation admonition was impliedly rejected by
the trial court’s ruling and casts doubt on other evidence offered in his declarations. We
defer to the trial court’s implied credibility determinations in affirming the denial order.
Additionally, we note that Longoria does not argue plea counsel should have been
aware the law was unsettled. In any event, he has offered no objective evidence to
corroborate his statement counsel either did not properly advise him or that counsel
affirmatively misadvised him about expungement. (See, e.g., Nunez-Reyes v. Holder
(9th Cir. 2011) 646 F.3d 684, 688-690 [convictions expunged under state law remain
deportable].)
Indeed, Longoria’s entire presentation to the court was based on his own
uncorroborated statements. “[W]hen a defendant seeks to withdraw a plea based on
inadequate advisement of immigration consequences, we have long required the
defendant corroborate such assertions with ‘ “objective evidence.” ’ ” (Vivar, supra,
11 Cal.5th at p. ___, [2021 WL 1726827, at *10].) There is little corroborating evidence
in this case.8
8 Plea counsel did not submit a declaration and did not testify at the motion
hearing. Longoria did, however, argue his plea counsel “was disbarred partially because
of this case.” Based on references in the record, Longoria apparently filed a request the
court judicially notice a document relating to the disbarment order. The formal request
was not included in the record on appeal. On our own motion, we judicially notice
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Finally, the trial court impliedly found Longoria lacked credibility by determining
he did not satisfy the burden of proof. That finding is entitled to deference because it is
supported by the lack of corroborating evidence and based on the trial court personally
observing Longoria’s testimony. (Vivar, supra, 11 Cal.5th at p. ___, [2021 WL 1726827,
at *8] [“appellate courts should … give particular deference to factual findings based on
the trial court’s personal observations of witnesses.”]; People v. Uribe (2011)
199 Cal.App.4th 836, 856 [trial court’s implied resolution of credibility entitled to
deference if supported by the record].) For all these reasons, we conclude the court did
not err in denying the motion to vacate the plea. (See Lee, supra, 137 S.Ct. at p. 1967
[“Courts should not upset a plea solely because of post hoc assertions from a defendant
about how he would have pleaded but for his attorney’s deficiencies. Judges should
instead look to contemporaneous evidence to substantiate a defendant’s expressed
preferences.”].)
disbarment order number 16-O-16706, filed on June 1, 2018. (Evid. Code, § 452,
subd. (d).)
In relation to Longoria, the disbarment order found plea counsel violated four
rules. One, counsel improperly accepted “$3,000 from a third party as compensation for
representing a client without obtaining the client’s informed written consent.” Two,
counsel “failed to file a motion to reduce a felony to a misdemeanor pursuant to Penal
Code section 17(b); and failed to file a motion for expungement pursuant to Penal Code
section 1203.4.” Three, counsel failed “to respond to his client’s reasonable status
inquiries over a two-year period.” Four, counsel failed to “provide a substantive
response … to the allegations of misconduct being investigated ….”
It is true the second reason describing failure to pursue expungement could
corroborate Longoria’s argument plea counsel misled him about the benefits to
expungement. However, we decline to read into counsel’s failure to pursue expungement
an express promise regarding immigration clemency.
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DISPOSITION
The judgment is affirmed.
SNAUFFER, J.
WE CONCUR:
FRANSON, Acting P.J.
SMITH, J.
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