Filed 8/11/21 P. v. Anguiano CA5
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
F079147
Plaintiff and Respondent,
(Super. Ct. No. VCF253827A)
v.
OCTAVIO JUAREZ ANGUIANO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Joseph A.
Kalashian, Judge.
Michael K. Mehr for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A.
Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
Octavio Juarez Anguiano pled no contest to a gang-related assault with a firearm
(Pen. Code,1 §§ 245, subd. (a)(2) & 186.22, subd. (b)). About six years later (and four
1 All undesignated statutory references are to the Penal Code.
years after sentencing), he moved to vacate his plea due to ongoing deportation
proceedings. The trial court denied his motion.
Anguiano now appeals the denial. For reasons that follow, we affirm.
BACKGROUND
Charges
The Tulare County District Attorney charged Anguiano with the following crimes:
Shooting at an inhabited dwelling (§ 246; count 1); assault with a firearm (§ 245,
subd. (a)(2); counts 2, 3, 4); and evading (Veh. Code, § 2800.2, subd. (a); Count 5). The
charges included numerous gang-related crime enhancements (§ 186.22, subd. (b);
counts 1-5) and various firearm enhancements.
Plea Hearing
At a change of plea hearing, the trial court advised Anguiano, “If you’re not a
citizen of the United States, your plea of guilty or no contest will result in your being
deported from the United States, denied readmission, naturalization, permanent
residency.” Anguiano indicated he wanted to plead no contest, to which the court
replied, “Are you pleading no contest not because you’re admitting guilt, but because you
want to avoid exposure to greater punishment should you be convicted of the charged
offenses?” He replied, “Yes, your Honor,” and then pled to one count of assault with a
firearm and admitted a gang-related crime enhancement.
The understanding at the time of the plea was Anguiano would serve nine years in
prison. That nine-year sentence was ultimately imposed at a later sentencing hearing.
The remaining charges were dismissed.
Motion to Vacate
After Anguiano was released from prison, he moved to vacate his plea pursuant to
section 1473.7. In the motion, his counsel argued Anguiano “clearly didn’t understand
that even a no-contest plea would cause him to be automatically and mandatorily
deported and forever barred from any future ability to re-immigrate or even just visit his
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family.” He added his trial counsel “clearly had alternative plea options he could have
presented to the prosecution that would carry the same criminal consequences while
avoiding the drastic classification under immigration law as an aggravated felony and
thereby preserving [his] eligibility for possible defenses to deportation.” Finally, he
claimed “[Anguiano] would not have entered into his plea agreement had he had
knowledge that this conviction would trigger his mandatory and permanent removal and
lifetime ineligibility for any future immigration benefits.”
At the hearing on the motion, Anguiano testified he had a conversation about the
immigration consequences of the plea with his trial counsel. The precise conversation
was excluded as hearsay. He indicated he knew he would be subject to deportation but
believed defenses to it were available to him and he would not have settled the case had
he known deportation was “automatic and mandatory ….”
On cross-examination, Anguiano acknowledged he agreed to a nine-year sentence
in lieu of life in prison. He could not recall why he settled the case, but denied it was to
avoid a life sentence.
During argument on the motion, the court interrupted the argument and this
exchange followed:
THE COURT: Excuse me. But then wasn’t the judge who
took the plea – didn’t he give them exactly the right advice?
He told him – he didn't tell him in the language of 1016, did
he?
[DEFENSE COUNSEL]: Your Honor, I don’t believe that
the legislature 1473.7 specified that a 1016 warning would
obviate or completely negate the defendant’s understanding.
THE COURT: Let me address that. I have two questions,
then. If that’s the case, why should a judge waste his breath
and time and even give an advisement?
[DEFENSE COUNSEL]: California law requires that all
defendants be aware.
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THE COURT: Answer the question. Why even waste our
time, then?
[DEFENSE COUNSEL]: So that defendants will be aware of
their consequences.
THE COURT: Second of all, this judge not only gave the
language of 1016 – what’s the language? The language of
1016 says “may.”
[DEFENSE COUNSEL]: May.
THE COURT: [May] wasn’t said in this case. Was it?
[DEFENSE COUNSEL]: No.
THE COURT: He said, “You will be deported”; correct?
[DEFENSE COUNSEL]: Your Honor, I don’t believe a
criminal judge has the knowledge necessarily to know
whether or not there are defenses available to deportation.
THE COURT: Did he not – didn’t the judge give him exactly
the right advice?
[DEFENSE COUNSEL]: I don’t believe –
THE COURT: In this case, based –
[DEFENSE COUNSEL]: I don’t believe so. I don’t believe
that the judge says that you will absolutely be disqualified
from any and all defenses.
THE COURT: Because he is. Because of the charges that he
pled to, in fact, he is going to be deported; correct?
[DEFENSE COUNSEL]: That’s correct.
THE COURT: So the judge gave him exactly the right
advice; correct?
4.
[DEFENSE COUNSEL]: That doesn’t mean that he
understood that as being absolute.
THE COURT: Then we go back to why would a judge – why
does he waste his time if he gives him exactly the right
advice? And knowing that, the person enters a plea and
comes back later and says, “Well, I didn’t know”?
The court then concluded, “I have a case where it’s clear that the advice given was
proper, absolutely proper, not equivocal, it was unequivocal as to what would happen in
this case, plus the defendant received a tremendous bargain in this case by his plea
agreement, I can’t believe that he would want to go to trial and face a life sentence when
he got a good deal. So I’m denying the motion.”
DISCUSSION
There are three issues on appeal. One, did the court incorrectly conclude the plea
judge’s immigration advisement was a bar to relief? Two, did the court fail to consider
plea counsel’s ineffectiveness in negotiating “an immigration safe disposition …?”
Three, did the court err in sustaining the hearsay objections? We find no prejudicial
errors.
I. The Court Did Not Determine An Immigration Advisement Is A Bar To Relief
Section 1473.7 permits a person to “file a motion to vacate a conviction” if “[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).) “[T]o establish a ‘prejudicial error’ …, a
person need only show by a preponderance of the evidence: 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
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probable he would have instead attempted to ‘defend against’ the charges.” (People v.
Mejia (2019) 36 Cal.App.5th 859, 862.)
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. When courts assess whether a petitioner has shown
that reasonable probability, they consider the totality of the circumstances. [Citation.]
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.” (People v. Vivar (2021)
11 Cal.5th 510, 530 (Vivar).)
“The probability of obtaining a more favorable result at trial is one factor to
consider in evaluating prejudice, but it is not necessarily the determinative factor.
[Citation.] As the United States Supreme Court recently explained …, it could be
reasonably probable that a defendant ‘would have rejected any plea leading to
deportation—even if it shaved off prison time—in favor of throwing a “Hail Mary” at
trial,’ where ‘avoiding deportation was the determinative factor for [the defendant].’ ”
(People v. Ogunmowo (2018) 23 Cal.App.5th 67, 78.)
In determining whether the defendant would insist on an alternative resolution,
the focus is not placed on “whether the prosecution would actually ‘have offered a
different bargain’ — rather” the focus is on whether “the defendant” could “expect or
hope a different bargain” was possible. (Vivar, supra, 11 Cal.5th at p. 529.) “[W]hen a
defendant seeks to withdraw a plea based on inadequate advisement of immigration
consequences,” he or she must corroborate “such assertions with ‘ “objective
evidence.” ’ ” (Id. at p. 530.)
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
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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. 528, fn. omitted.)
A trial court warning that deportation “will result” is not a bar to relief. (People v.
Camacho (2019) 32 Cal.App.5th 998. 1011, fn. 8.) “In evaluating the court’s [warning],
“[t]he defendant can be expected to rely on counsel’s independent evaluation of the
charges, applicable law, and evidence, and of the risks and probable outcome of trial.” ’ ”
(People v. Patterson (2017) 2 Cal.5th 885, 896.) The court’s warning is a “ ‘generic
advisement’ … and … ‘is not designed, nor does it operate, as a substitute for such
advice’ of defense counsel regarding the applicable immigration consequences in a given
case.” (See In re Hernandez (2019) 33 Cal.App.5th 530, 545 [concluding “the word
‘will’ ” in a plea form is generic advice and does not adequately explain when
deportation is “mandatory”].)
A trial court warning is nonetheless relevant to evaluate the moving party’s
credibility. The court here properly considered it in evaluating Anguiano’s credibility
and concluded the warning, “plus the … tremendous [plea] bargain,” left Anguiano
lacking credibility. Contrary to Anguiano’s claim, the court did not use the warning as a
categorical bar to relief.
The court’s credibility resolution is supported by the evidence and entitled to
deference because it is based on the court’s personal observation. (Vivar, supra,
11 Cal.5th at pp. 527-528.) For example, Anguiano told the plea court he settled his case
to avoid potential life in prison and expressed no concern when informed he would be
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deported. At the section 1473.7 motion hearing, Anguiano claimed he could not
remember why he settled his case. The court was not required to believe his
uncorroborated testimony and entitled to infer his ignorance was feigned. (Ibid.)
In conclusion, we find the court did not utilize the prior immigration warning as an
absolute bar to relief. Rather, it properly considered the warning as evidence in assessing
Anguiano’s credibility. (See People v. Perez (2018) 19 Cal.App.5th 818, 830 (Perez)
[defendant not credible in light of court’s “unequivocal” warning “about the immigration
consequences of a guilty plea” that he “would be deported” if he pled guilty].)
II. Anguiano Did Not Prove Plea Counsel Was Ineffective
Next, Anguiano argues “an immigration safe disposition … was available in this
case” and his plea counsel was ineffective for failing to negotiate one. We disagree.
“To prevail, [Anguiano] must demonstrate that (1) counsel’s representation fell
below an objective standard of reasonableness, as judged by ‘prevailing professional
norms’ [citation], and (2) ‘but for counsel’s unprofessional errors, the result of the
proceeding would have been different’ [citations]; that is, ‘a reasonable probability exists
that, but for counsel’s incompetence, he would not have pled guilty and would have’ ”
pursued a different resolution.2 (People v. Olvera (2018) 24 Cal.App.5th 1112, 1116-
1117 (Olvera).)
It is true “that the mere failure to investigate an immigration-neutral alternative
disposition in plea bargaining could constitute deficient performance. [Citation.] But
[Anguiano’s] showing is insufficient to prevail under this theory of deficiency” for
multiple reasons. (Olvera, supra, 24 Cal.App.5th at p. 1118.)
2 We recognize “the moving party ‘need not establish ineffective assistance of
counsel,’ and ‘even if the motion is based upon errors by counsel, the moving party need
not also establish a Sixth Amendment violation as by demonstrating that ‘counsel’s
representation ‘fell below an objective standard of reasonableness’ ” “ ‘under prevailing
professional norms.’ ” ’ ” (People v. DeJesus (2019) 37 Cal.App.5th 1124, 1133.) This
particular issue presents a classic ineffective assistance claim.
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Most importantly, Anguiano did not present any evidence at the motion hearing to
support his contention plea counsel was ineffective. There is no declaration by his plea
attorney confirming the failure to “consider alternatives in the disposition.” (People v.
Cruz-Lopez (2018) 27 Cal.App.5th 212, 222 (Cruz-Lopez).) “[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. 530.) “An allegation that trial counsel
failed to properly advise a defendant is meaningless unless there is objective
corroborating evidence ….” (Cruz-Lopez, supra, at pp. 223-224.)
On appeal, appellate counsel has identified a specific alternate resolution that
would have helped to mitigate any immigration consequence. That resolution entails a
plea to shooting at an inhabited dwelling (§ 246; count 1) while admitting a gang-related
crime enhancement (§ 186.22, subd. (b)(1)(B)), totaling 10 years in prison. According to
appellate counsel, this resolution would have protected Anguiano’s ability to avoid
deportation.
At first blush, the resolution is enticing because it presumably preserves each of
the People’s interests, i.e., a conviction for a strike offense, a gang-related enhancement,
and lengthy incarceration. The problem is a gang-related shooting at an inhabited
dwelling is punishable by life in prison, not the 10 years suggested by appellate counsel.
(§ 186.22, subd. (b)(4)(B).) Accordingly, we cannot find plea counsel was deficient for
failing to offer the proposed resolution. Because Anguiano has not identified a
reasonable alternative to the actual plea, his uncorroborated allegation plea counsel was
ineffective fails.3
3 In a related vein, we emphasize in determining whether the defendant would
insist on an alternative resolution, the focus is not placed on “whether the prosecution
would actually ‘have offered a different bargain’ — rather” the focus is on whether “the
defendant” could “expect or hope a different bargain” was possible. (Vivar, supra,
9.
III. The Hearsay Exclusion Was Error But Harmless
The trial court excluded as hearsay both Anguiano’s testimony regarding what
plea counsel told him regarding immigration consequences and the reason he believed he
could defend against deportation. He now challenges those rulings on appeal. The
People relegate the claim to a footnote and contend the trial court did not err and, if it did,
the error was harmless.
We conclude the court erred in excluding the evidence as hearsay. “ ‘ “If a fact in
controversy is whether certain words were spoken or written and not whether the words
were true, evidence that these words were spoken or written is admissible as nonhearsay
evidence.” ’ ” (People v. Smith (2009) 179 Cal.App.4th 986, 1003.) A fact in
controversy in this case was whether plea counsel provided ineffective assistance of
counsel. Counsel’s actual advice was thus admissible evidence. The court erred in
concluding otherwise.
The error in this case, however, is harmless. “The erroneous exclusion of
evidence is grounds for reversal if, in light of the entire record, it is reasonably probable
that a result more favorable to the appealing party would have been reached in the
absence of the error.” (Brown v. County of Los Angeles (2012) 203 Cal.App.4th 1529,
1550.) That standard is not met.
Candidly, it is unclear what Anguiano’s testimony would potentially have proven
because the evidence was excluded and not otherwise placed on the record.4 We will
assume the excluded testimony was favorable to Anguiano and view it in the light most
11 Cal.5th at p. 529.) We are disinclined to believe Anguiano would have pursued a plea
bargain to serve life in prison when he was in fact offered a bargain to serve nine years.
4 There was no offer of proof to preserve the excluded testimony for appeal. As
noted, the People addressed the hearsay argument in a cursory fashion and did not raise
any forfeiture issue.
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favorable to him, i.e., his plea counsel specifically told him he could settle the case by
pleading to assault with a firearm and still defend against deportation.
We do not find it reasonably probable the trial court would have credited
Anguiano’s testimony—and thus granted the motion—had it known he settled his case
with reliance on plea counsel’s advice. Two reasons inform our belief. First, the fact
Anguiano believed he could defend against deportation notwithstanding his no contest
plea was admitted into evidence. Second, the basis for that belief, although excluded,
was uncorroborated.
The uncorroborated basis for Anguiano’s belief adds little to his credibility. (See
Cruz-Lopez, supra, 27 Cal.App.5th at pp. 223-224 [uncorroborated claims regarding
counsel’s ineffectiveness are “meaningless” because a defendant’s statements alone are
suspect]; accord, Vivar, supra, 11 Cal.5th at p. 530.) “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.” (Lee v. United
States (2017) 137 S.Ct. 1958, 1967; Cruz-Lopez, supra, 27 Cal.App.5th at p. 224 [same].)
The record here lacks substantial contemporaneous evidence to corroborate
Anguiano’s ineffective assistance claim. In sum, we find the trial court would not have
granted the motion to vacate had it allowed Anguiano to specifically recite plea counsel’s
immigration advice. Accordingly, we find the erroneous exclusion of that evidence
harmless.
IV. Prejudice Analysis
As we have said, 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
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the plea deal, i.e., he was prejudiced because he did not meaningfully understand the
consequences of the plea.
On the first element, the type of “error” required by section 1473.7, a defendant
need show 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. Even if we assumed error in
this case, Anguiano has not carried his burden to show prejudice.
In conducting the prejudice analysis, the question is whether Anguiano has shown,
by a preponderance of the evidence, that he would not have entered the plea had he
known it would render him deportable. Based on the record, we conclude he has not met
his burden on these issues, that he was 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 lacking in Anguiano’s declaration and
testimony.5
5The only evidence of Anguiano’s ties to the United States was his testimony that
he had been a lawful permanent resident since 1992 and the hearsay declaration of his
counsel, Andrew Fishkin, to the effect that in addition, Anguiano’s “entire extended
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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, Anguiano testified. We
defer to the trial court’s implied credibility determinations in affirming the denial order.
Indeed, Anguiano’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. 530.) There is little corroborating evidence in this case.
Finally, the trial court impliedly found Anguiano lacked credibility. That finding
is entitled to deference because it is supported by the lack of corroborating evidence and
based on the trial court personally observing his testimony. (Vivar, supra, 11 Cal.5th at
pp. 527-528 [“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].) 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.”].)
family [resides] in the United States as either Lawful Permanent Resident Aliens or
Unites States citizens .…” The family members are not identified. Compare the
conclusory language in Anguiano’s evidence in contrast to the detailed evidence set forth
in Vivar, supra, 11 Cal.5th at p. 520; Mejia, supra, 36 Cal.App.5th at pp. 872-873; and
Camacho, supra, 32 Cal.App.5th at p. 1011.
13.
DISPOSITION
The judgment is affirmed.
SNAUFFER, J.
WE CONCUR:
FRANSON, Acting P.J.
SMITH, J.
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