Filed 6/23/21 P. v. Casas CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301841
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA049029)
v.
EDGAR R. CASAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael Villalobos, Judge. Affirmed.
Law Offices of Michael Poole and Michael Poole for
Defendant and Appellant.
Xavier Becerra, Attorney General, Matthew Rodriquez,
Acting Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Paul M. Roadarmel, Jr., and Steven D. Matthews,
Deputy Attorneys General, for Plaintiff and Respondent.
******
Edgar R. Casas (defendant) appeals from an order denying
a Penal Code1 section 1473.7 motion to vacate his 2002 guilty
plea to willful infliction of corporal injury to a spouse (§ 273.5,
subd. (a)) and dissuading a witness by force or threat (§ 136.1,
subd. (c)(1)). We affirm the trial court’s order.
FACTUAL BACKGROUND2
On March 2, 2002, Pam V., the mother of defendant’s two
minor children, went to defendant’s home at his request. When
Pam and the children arrived, defendant appeared to be under
the influence of methamphetamine. Defendant left the home
without explanation, and Pam and the children went to bed.
Approximately 45 minutes later, defendant returned. An
argument ensued that escalated into a physical altercation.
Defendant grabbed Pam by the front of her shirt and punched her
in the stomach three times. He then grabbed Pam’s hair and
punched her in the face and on the right cheek. Defendant’s
brother entered the room and separated defendant from Pam,
who left with the children and called the police. Pam obtained an
emergency protective order that evening.
Defendant was arrested a few days later. Despite the
protective order, defendant called Pam and urged her to lie to his
probation officer about the assault. In multiple subsequent
telephone calls, defendant told Pam that he did not want to go to
jail and threatened her by stating, “Snitches end up in ditches,”
1 All further statutory references are to the Penal Code
unless otherwise noted.
2 The factual background is taken from the trial court’s
August 19, 2019 order denying defendant’s motion to vacate.
2
and “My mom hurts because I go to jail, your mom’s going to hurt
too.” Pam was afraid of defendant, as he had told her in the past
that he was a member of the 18th Street gang.
PROCEDURAL HISTORY
Charged crimes and plea
An information filed by the Los Angeles County District
Attorney charged defendant with corporal injury to a spouse, in
violation of section 273.5, subdivision (a) (count 1), and
dissuading a victim by force, in violation of section
136.1,subdivision (c)(1) (count 2). The information further
alleged as to count 1 that defendant had a prior misdemeanor
conviction for domestic violence within the past seven years. As
to count 2, the information alleged that defendant had a prior
conviction for a serious or violent felony under sections 1170.12,
subdivisions (a) through (d), and 667, subdivisions (b) through (i),
and pursuant to section 12022.1; and that defendant was
released from custody on bail on his own recognizance at the time
of the offense.
Defendant initially pleaded not guilty and denied all
allegations. He thereafter retained private counsel.
On July 2, 2002, defendant withdrew his previous not
guilty plea, and pled guilty to both counts. Pursuant to the terms
of his plea agreement, defendant was sentenced to three years in
state prison, consisting of the low term of two years on count 1,
and one year (one-third of the three-year midterm) on count 2.
The prior conviction allegation for violation of section 245,
subdivision (a)(1) was reduced to a misdemeanor, and the
allegation pursuant to section 12022.1 was dismissed.
3
Motion to vacate
On April 9, 2018, defendant filed a motion to withdraw his
plea pursuant to section 1473.7. In a declaration accompanying
his motion, defendant stated that he had entered the guilty plea
without understanding the immigration consequences of the plea
and that he would not have entered into the plea agreement had
he known he could be subject to an immigration bar. The People
opposed the motion.
Defendant and his counsel, Sylvan Daroca both testified at
the July 12, 2019 hearing on the motion to vacate. Daroca
testified that although he had no independent recollection of his
discussions with defendant at the time of the 2002 guilty plea, it
was Daroca’s general practice in 2002 to give his clients the
standard section 1016.5 immigration advisement. After hearing
argument from the parties, the trial court took the matter under
submission.
On August 19, 2019, the trial court issued an order denying
the motion. The trial court found, based on the reporter’s
transcript of defendant’s 2002 plea proceeding, that defendant
had been advised of the adverse immigration consequences of his
plea pursuant to section 1016.5. The trial court rejected as not
credible defendant’s claims that he was unaware of the
immigration consequences of his plea and that he would not have
pled guilty had he known he would be deported or subject to an
immigration bar. The trial court noted that defendant had three
previous convictions: a 1989 conviction for reckless driving
involving alcohol, a 1996 misdemeanor conviction for domestic
violence, and a 2001 felony conviction for possession of an assault
weapon, and a misdemeanor conviction for assault with a deadly
weapon; and in all three cases, defendant was advised of the
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adverse immigration consequences of a guilty plea pursuant to
section 1016.5. The trial court rejected as not credible
defendant’s claim that Daroca, his counsel in 2002, did not advise
him of the immigration consequences of his guilty plea.
Finally, the trial court noted that defendant’s options in
2002 were limited and that he likely faced a state prison term
longer than the three-year sentence he received pursuant to his
plea agreement. At the time of his plea, defendant was on felony
probation for possession of an assault weapon and faced a state
prison commitment for violation of his probation as well as a
maximum 10-year prison term in his plea case. Given the
likelihood that defendant faced a prison term for violation of his
probation, and a possible lengthy prison term if defendant were
convicted of the 2002 charges, the trial court found defendant’s
claim that he would not have pled guilty had he known the
immigration consequences of his plea not to be credible.
The trial court denied the motion to vacate on the ground
that defendant failed to establish prejudicial error under section
1473.7. This appeal followed.
DISCUSSION
I. Applicable law and standard of review
Section 1473.7 requires a trial court to vacate a conviction
as “legally invalid” if the defendant establishes, by a
preponderance of the evidence, that the defendant was unable “to
meaningfully understand . . . the actual or potential adverse
immigration consequences of a plea,” and the defendant’s
misunderstanding was prejudicial to the decision to enter the
plea. (§ 1473.7, subds. (a)(1), (e)(1); see People v. Camacho (2019)
32 Cal.App.5th 998, 1011-1012 (Camacho).) To establish
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prejudice arising from a failure to understand the immigration
consequences of a plea, a defendant must show that it is
“reasonably probable” he would not have pled guilty had he been
properly advised. (People v. Martinez (2013) 57 Cal.4th 555, 564.)
The defendant bears the burden of establishing the legal
invalidity of the prior conviction under section 1473.7. (§ 1473.7,
subd. (e)(1); Camacho, supra, 32 Cal.App.5th at p. 1005.) This
burden may but need not be met by proving ineffective assistance
of counsel. (§ 1437.7, subd. (a)(1); People v. Mejia (2019) 36
Cal.App.5th 859, 871.)
We review de novo a trial court’s ruling that a conviction is
legally invalid when it is based on a constitutional claim of
ineffective assistance of counsel. (People v. Vivar (2019) 11
Cal.5th 510, 523-528 (Vivar).) We review the trial court’s ruling
on any other basis for abuse of discretion (ibid) and the trial
court’s factual findings under the substantial evidence standard.
(People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76 (Ogunmowo).)
Defendant here does not assert ineffective assistance of counsel
as a basis for invalidating his conviction.3 We therefore apply the
deferential abuse of discretion and substantial evidence
standards.
3 Defendant does not contend his counsel provided ineffective
assistance; rather, he claims his attorney did not defend against
the immigration consequence because at the time of defendant’s
plea, “the law was not clear” that violation of section 273.5 was
“categorically a crime of domestic violence” within the meaning of
federal immigration laws.
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II. Failure to prove lack of understanding of
immigration consequences
The trial court determined that defendant failed to prove a
lack of understanding of the immigration consequences of his
plea. That determination is based on the court’s finding that
defendant’s claim that his counsel did not advise him of those
consequences was “simply not credible.” The trial court’s
credibility assessment of defendant’s assertions in support of his
section 1473.7 motion is entitled to particular deference,
particularly where, as here, that assessment is based on the
court’s evaluation of defendant’s in-person testimony. (Vivar,
supra, 11 Cal.5th at pp. 527-528; Ogunmowo, supra, 23
Cal.App.5th at p. 79 [trial court’s credibility determinations
based on “live testimony” accorded particular deference].)
People v. Rodriguez (2021) 60 Cal.App.5th 995, People v.
Jung (2020) 59 Cal.App.5th 842, and People v. Ruiz (2020) 49
Cal.App.5th 1061, cases cited by defendant’s appellate counsel
during oral argument, are inapposite. None of those cases
involved a trial court’s credibility assessment of the appellant’s
assertions in support of the section 1473.7 motion. The court in
Jung expressly acknowledged that an “appellate court does not
reassess witness credibility but defers to the trial court’s
credibility determinations. (Jung, at p. 853.) That rule applies
here.
The trial court similarly rejected defendant’s claim that he
lacked understanding of the immigration consequences of his
plea because the law at the time was unclear as to whether
section 273.5, subdivision (a) was a crime of domestic violence
within the meaning of the federal Immigration and Nationality
Act and remained unclear until the Ninth Circuit clarified in
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2015 that section 273.5 “is categorically a crime of domestic
violence within the meaning of [title 8 United State Code]
§ 1227(a)(2)(E)(i).” (Carillo v. Holder (9th Cir. 2015) 781 F.3d
1155, 1159.) To the extent that conclusion was based on the trial
court’s assessment of defendant’s credibility, it is accorded
deference. (Vivar, supra, 11 Cal.5th at pp. 527-528.) Our review
of the reporter’s transcript of the July 12, 2019 hearing on
defendant’s motion does not alter this result.4
Defendant failed to provide credible evidence that he lacked
a meaningful understanding of the immigration consequences of
his plea. The trial court did not abuse its discretion by denying
defendant’s motion to vacate his plea.
III. Lack of prejudice
The trial court found defendant’s claim that he would not
have pled guilty had he known the adverse immigration
consequences of his plea not to be credible. That finding cannot
be challenged on appeal. (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.)
Moreover, as the trial court noted in its written order
denying the motion to vacate, defendant’s options in 2002 were
limited. Defendant faced a maximum potential sentence of 10
years in this case. At the time of his plea, defendant was also in
violation of his probation for felony possession of an assault
weapon. Even if acquitted of the charges in this case, he still
faced a state prison commitment for violation of his probation
that could have exceeded the three-year sentence he received as
4 We grant defendant’s motion to augment the record on
appeal to include the transcript of the July 12, 2019 hearing.
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part of his plea agreement. If convicted of the charges in this
case, defendant faced a substantial state prison sentence. The
comparative punishment defendant faced—a three-year prison
sentence versus a potentially lengthy prison sentence for
violation of his probation and for the charged offenses—provided
a strong incentive for defendant to plead guilty notwithstanding
the immigration consequences.
The trial court’s finding of no prejudice was not an abuse of
discretion.
DISPOSITION
The order denying the motion to vacate defendant’s
conviction is affirmed.
________________________, J.
CHAVEZ
We concur:
________________________, P. J.
LUI
________________________, J.
ASHMANN-GERST
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