Filed 8/27/21 P. v. Chweya CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B301780
Los Angeles County Super.
Plaintiff and Respondent, Ct. No. VA093880)
v. ORDER MODIFYING
OPINION AND DENYING
RODNEY D. CHWEYA, PETITION FOR REHEARING
Defendant and Appellant. [There is no change in judgment]
BY THE COURT:
It is ordered that the opinion filed herein on July 30, 2021, is
modified as follows:
1. On pages 10-11 beginning at the bottom of page 10, delete the
last paragraph that reads:
Appellant argues that he “could have [] pled guilty
to a factually related immigration-safe serious felony, such
as first degree burglary.” But he does not offer any
evidence that the prosecutor would have considered, or
the trial court would have accepted, a different plea.
Given appellant’s criminal record, his taped confession,
and the seriousness of the offense, the only reasonable
inference is that neither the prosecutor nor the court
would have agreed to such a disposition. Appellant’s
claim that his counsel could have negotiated a different
plea thus reduces to speculation without record support.
(People v. Castillo (2021) 64 Cal.App.5th 1103, 1115
[“Appellant’s speculation that another plea could have
been negotiated ‘ “is not evidence, less still substantial
evidence.” ’ ”].)
And replace with:
Appellant argues that he “could have [] pled guilty
to a factually related immigration-safe serious felony, such
as first-degree burglary.” The record shows appellant
could not “expect or hope a different bargain” was
possible in light of the seriousness of the offense, his
criminal record and his confession to police that he
committed the charged sexual act with a minor. (Vivar,
supra, 11 Cal.5th at p. 529.)
2. On page 12, delete the heading that reads:
The Trial Court Did Not Err in Excluding
Appellant’s Declarations
And replace it with:
Any Error in Excluding Appellant’s Declarations
Was Harmless
There is no change in judgment.
The petition for rehearing is denied.
____________________________________________________________
RUBIN, P. J. MOOR, J. KIM. J.
2
Filed 7/30/21 P. v. Chweya CA2/5 (unmodified opinion)
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 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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B301780
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA093880)
v.
RODNEY D. CHWEYA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Debra A. Cole-Hall, Judge. Affirmed.
Christopher Lionel Haberman, under appointment by
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Rama R. Maline,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
In 2006, appellant Rodney D. Chweya pled guilty to
unlawful sexual intercourse with a minor. Twelve years later,
Chweya moved to vacate his plea under newly enacted Penal
Code section 1473.7 and claimed that, due to his defense
counsel’s inaccurate advice, he did not understand that his plea
subjected him to deportation.1 He also argued he was prejudiced
by his counsel’s failure to bargain for an immigration-neutral
plea. The trial court denied the motion, and he appealed. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Appellant’s Conviction
In 2006, the district attorney charged appellant, an
immigrant from Kenya, with unlawful sexual intercourse with a
minor (§ 261.5, subd. (d)), committing a lewd act upon a minor
(§ 288, subd. (c)(1)), and oral copulation of a minor (§ 288a, subd.
(b)(2)). Appellant admitted to committing the charged acts.
On April 26, 2006, appellant pled guilty to the unlawful sex
with a minor count. On the plea form, appellant initialed the
following provision: “I understand that if I am not a citizen of the
United States, conviction for the offense charged may have the
consequences of deportation, exclusion from admission to the
United States, or denial of naturalization under the laws of the
United States.”
Appellant’s counsel signed a waiver form stating he had
explained to appellant each of the rights set forth in the plea
agreement. At a hearing, the prosecutor asked appellant, “If you
are not a citizen of the United States, your plea will cause you to
be deported, denied re-entry, denied naturalization, and amnesty.
Do you understand this?” (Italics added.) Appellant responded,
1 All further statutory references are to the Penal Code.
2
“Yes.” Appellant faced a maximum four-year sentence. The court
imposed a suspended three-year state prison sentence and
ordered him to serve 364 days in county jail. He was placed on
five years probation. The remaining charges were dismissed.2
2. Deportation Proceedings
Four years later, in 2010, the Department of Homeland
Security charged appellant with removability for his conviction.
The department noted that appellant was a citizen of Kenya who
had come to the United States on a visa in 1988 when he was 10
years old. An immigration judge sustained the charge of
removability.
The Board of Immigration Appeals (Board) affirmed,
holding that a conviction of unlawful sexual intercourse with a
minor was an aggravated felony that subjected appellant to
deportation. The Board also denied appellant’s application for
adjustment of status, declining to exercise its discretion to waive
inadmissibility to the United States. The Board reasoned
appellant did not merit a favorable exercise of discretion because
he had “an extensive criminal record including, in addition to his
sex offense, convictions in 1995 for assault, child cruelty, and
disturbing the peace, 1997 for assault, 2002 for disturbing the
peace and contempt of court, 2003 for providing false
identification to a police office[r], and 2008 for driving with a
suspended license, an offense which he acknowledged occurred
after his license was suspended for failing to repay child support
arrears.”
2 By pleading guilty to section 261.5, subdivision (d),
appellant avoided mandatory registration as a sex offender. The
dismissed charges required lifetime registration. (§ 290,
subd. (d)(2)(B) & (3).)
3
3. Appellant’s Motion to Withdraw His Plea
After being charged with deportation, appellant filed a
motion in the trial court under sections 1192.5, 1475 and 1487(3)
to withdraw his plea on November 17, 2010. At the motion
hearing, the attorney who had represented appellant in his
criminal proceedings, David Price, testified. He told the court
that, during the plea negotiations, appellant had been “concerned
about his being deported,” and had pled “to what [Price] thought
was a misdemeanor so he would not be deported.” Counsel
testified that he told appellant that he could “come back and
reduce the felony to a misdemeanor . . . and if it was a
misdemeanor, [appellant] would not be deported.”
The trial court denied the motion, reasoning that appellant
“had a taped confession to basically three felony counts, two of
them definitely not reducible, and, as you say, maybe the lifetime
[sex offender] registration would be nothing if he got deported;
but nevertheless, you take that into consideration if you think
he’s going to stay here . . . I don’t think I can ignore the fact that
this was not a case Mr. Chweya could go to trial on. I agree the
deportation was a harsh consequence, but I don’t believe there’s
sufficient cause for me to set aside the plea . . . .”
4. Appellant’s Motion to Reopen His Case and Vacate
His Conviction
Eight years later, in 2018, the Legislature enacted section
1473.7 which provides that a court “shall” vacate a conviction or
sentence upon a showing, by a preponderance of the evidence, of
“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, subds. (a)(1), (e)(4).)
4
In December 2018, appellant filed a motion to reopen his
case and vacate his conviction under section 1473.7 and 1016.5.3
It is the denial of this motion that forms the basis of the appeal.
He argued he did not meaningfully understand, defend against,
or knowingly accept the adverse immigration consequences of his
plea. His “attorney did not advise him of any immigration
consequences or even speak with him as to any consequences that
would accompany his plea.”
Appellant supported his motion with declarations by
himself and counsel Price. In appellant’s declarations, he stated
that his attorney “never discussed with [him] any immigration
consequences that stemmed from entering the plea.” Had his
attorney or the trial court advised him “of the immigration
consequences triggered by [his] plea, [appellant] would not have
entered” the plea, but would have attempted to negotiate an
alternative plea or taken his case to trial.
Although appellant stated he did not discuss immigration
consequences with his attorney, Price stated in a declaration that
appellant’s immigration status “was an important consideration
in this case.” At the time of the plea deal, Price believed that
appellant’s sentence “would not have any effect” on appellant’s
immigration status because if appellant complied with the terms
3 Section 1016.5, among other things, contains the statutory
mandate that a defendant must be advised of the immigration
consequences of the plea.
This motion was taken off calendar due to confusion about
whether appellant had retained new counsel. Several months
later, in March 2019, appellant filed a new motion to vacate his
conviction making the same arguments. The trial court
considered the materials filed in support of both motions at the
hearing.
5
and conditions of probation he could apply to the court to have
the charge reduced from a felony to a misdemeanor.
Appellant was unable to attend the hearing on his motion
because by then he had been deported to Kenya. However, Price
testified at the hearing. Price’s testimony was inconsistent as to
whether he and appellant had discussed the immigration
consequences of the plea. Price initially testified that he thought
appellant was pleading to a misdemeanor because appellant was
only sentenced to 364 days in jail. Price did not know if the plea’s
immigration consequences “would be neutral, but I didn’t think
he would be deported.” Price did not remember discussing the
plea’s immigration consequences with appellant, testifying:
“other than to take the plea, I don’t recall advising him on that
issue at all, but I don’t recall not advising him.” Price was
testifying in 2019 about events that had taken place in 2006.
Later on in the hearing, Price testified that he had
understood that appellant was pleading to a felony. In addition,
when asked whether Price had “explained to [appellant] that
within a few years, if he stayed out of trouble, no violation
problems, if he was able to reduce the felony . . . to a
misdemeanor, that he would no longer be deported,” Price
responded “I believe that’s correct. Yes.” Price later clarified
that he told appellant that if there were no probation violations,
“there is a possibility that [appellant] can apply to have the
sentence reduced after a while so [he] would not be deported.”
After Price testified, the prosecution moved to exclude
appellant’s declarations because appellant was not available for
cross-examination. Appellant’s counsel objected, arguing the
declarations were admissible because appellant was unavailable
as he had been deported to Kenya. The court ruled that
appellant’s declarations were inadmissible.
6
The court denied appellant’s motion, and concluded that
appellant had understood the immigration consequences of his
conviction. The court noted that appellant initialed the waiver
form dealing with the immigration consequences of his plea, and
appellant’s counsel indicated he went over that form with
appellant. The court found that Price and appellant both “knew
that he was pleading to a felony and the plan was that if he got
through probation, it could be reduced to a misdemeanor.” The
court noted that even if it had admitted appellant’s statements,
the “ruling would not change.” Appellant timely appealed.
DISCUSSION
1. Section 1473.7
Under section 1473.7, a person who is no longer in criminal
custody may move to vacate a conviction or sentence where the
“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.” (§ 1473.7, subd. (a)(1).)
After section 1473.7 was first enacted in 2017, California
courts uniformly assumed that moving parties who claimed to
have received erroneous information from counsel must
demonstrate that counsel rendered ineffective assistance under
the guidelines enunciated in Strickland v. Washington (1984)
466 U.S. 668. (People v. Camacho (2019) 32 Cal.App.5th 998,
1005.) In 2018, the Legislature amended section 1473.7 to
provide that a finding of prejudicial error “may, but need not,
include a finding of ineffective assistance of counsel.” (Camacho,
at p. 1006, italics omitted.)
Showing prejudicial error under section 1473.7, “means
demonstrating a reasonable probability that the defendant would
have rejected the plea if the defendant had correctly understood
7
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,
529-530 (Vivar).)
We review the trial court’s ruling on a section 1473.7 motion
under the independent standard of review. (Vivar, supra,
11 Cal.5th at p. 524.) “ ‘[U]nder independent review, an appellate
court exercises its independent judgment to determine whether
the facts satisfy the rule of law.’ [Citation.] When courts engage
in independent review, they should be mindful that
‘ “[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 similarly give particular deference to
factual findings based on the trial court’s personal observations of
witnesses. [Citation.] Where . . . the facts derive entirely from
written declarations and other documents, however, there is no
reason to conclude the trial court has the same special purchase
on the question at issue; as a practical matter, ‘[t]he trial court
and this court are in the same position in interpreting written
declarations’ when reviewing a cold record in a section 1473.7
proceeding.” (Id. at p. 527.)
2. Appellant Did Not Demonstrate Prejudice
We briefly discuss appellant’s contention that he was not
adequately advised of the immigration consequences of his plea.
8
Ultimately, we do not have to decide that issue because appellant
has not shown a reasonable probability that but for any
deficiency in the advisement, he would not have entered the same
plea. Thus, appellant has not shown legal prejudice from any
inadequate advisement.
Appellant argues that his conviction must be vacated
because Price failed to properly advise him of the immigration
consequences of his plea or pursue an immigration-neutral plea
deal. Appellant contends he did not meaningfully understand the
adverse immigration consequences of his plea and would not have
accepted the plea if he had. Instead, he would have sought a plea
to some other charge or faced the risks of trial.
In support of this claim, appellant cites both to Price’s post
hoc statements and evidence contemporaneous to the time of his
plea. Appellant first argues that the record establishes Price
misadvised him “that by pleading Guilty to this charge he would
be able to protect his immigration status as it could be later
reduced to a misdemeanor . . . .” We initially observe that, over
the years, Price provided inconsistent testimony on what he
advised appellant during the plea negotiations. In 2010, Price
testified he told appellant he could avoid deportation by applying
to reduce the felony to a misdemeanor. But in 2019, at the
section 1473.7 hearing, Price initially said he could not remember
discussing with appellant the immigration consequences of his
plea. Price then revised this statement, testifying that he told
appellant “there is a possibility” appellant could apply to have his
sentence reduced so he “would not be deported.”
We do not read this record as establishing that Price told
appellant he would be able to “protect his immigration status” by
pleading guilty. Instead, when questioned by the district
attorney on his statements to appellant, Price revised his
previous version and testified that he told appellant there was a
9
possibility he could avoid deportation by subsequently moving to
reduce the felony to a misdemeanor. To the extent Price’s
testimony was internally inconsistent, it was for the trial court—
not this court—to resolve the conflict. The trial court’s findings
as to Price’s testimony do not support appellant’s argument on
appeal.
As for appellant’s own understanding of the immigration
consequences at the time of his plea, the only contemporaneous
evidence on this point was that appellant understood his plea
subjected him to deportation: when the district attorney asked
him at the plea hearing whether he understood his plea would
cause him to be deported, appellant responded without
hesitation, “Yes.” (Cf. Lee v. United States (2017) 137 S.Ct. 1958,
1968 [when the trial judge during a plea colloquy asked the
defendant if he understood he could be deported and whether
that affected his decision, the defendant replied that it did and
asked his attorney for advice].)
We do not resolve whether appellant understood the
immigration consequences of the plea. Instead, we decide this
appeal on appellant’s failure to show prejudice from any lack of
understanding. Even if Price erroneously suggested to appellant
there was a possibility he could avoid deportation by later
applying to reduce his conviction, appellant has not shown a
reasonable possibility that he would have chosen to lose the
benefits of the plea had his attorney told him otherwise.
Appellant argues that he “could have [] pled guilty to a
factually related immigration-safe serious felony, such as first-
degree burglary.” But he does not offer any evidence that the
prosecutor would have considered, or the trial court would have
accepted, a different plea. Given appellant’s criminal record, his
taped confession, and the seriousness of the offense, the only
reasonable inference is that neither the prosecutor nor the court
10
would have agreed to such a disposition. Appellant’s claim that
his counsel could have negotiated a different plea thus reduces to
speculation without record support. (People v. Castillo (2021)
64 Cal.App.5th 1103, 1115 [“Appellant’s speculation that another
plea could have been negotiated ‘ “is not evidence, less still
substantial evidence.” ’ ”].)
The Supreme Court’s recent Vivar opinion stands in
contrast to the case before us. In Vivar, the defendant moving for
section 1473.7 relief filed a declaration claiming he would never
have entered his plea had he understood that it would require his
deportation. (Vivar, supra, 11 Cal.5th at p. 530.) His counsel’s
recollection and contemporaneous notes showed that the
defendant had been concerned about the “consequences” of his
plea. (Ibid.) The record also showed that the prosecution had
offered the defendant a plea under which he could have avoided
mandatory deportation. (Id. at p. 531.) Under these
circumstances, the court found “ ‘ “a reasonable probability” ’ that
the defendant could have tried ‘to obtain a better bargain that
[did] not include immigration consequences.’ [Citation.]” (Ibid.)
Here, appellant offered no contemporaneous evidence, such
as his counsel’s notes, that reflected either appellant’s concern
about the immigration consequences of his plea when he accepted
the bargain or that he was offered a different plea or that he
would have gone to trial if he had fully understood the
immigration consequences. (See Lee v. United States, 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 [but]
should instead look to contemporaneous evidence to substantiate
a defendant’s expressed preferences.”]; see People v. Ogunmowo
(2018) 23 Cal.App.5th 67, 78 [the principles in Lee v. United
11
States are applicable to a prejudice analysis under section
1473.7].)
Appellant has not shown prejudice.
3. The Trial Court Did Not Err in Excluding Appellant’s
Declarations
Appellant argues the trial court erred in excluding his
declarations on the ground that he was not present at the
hearing to be cross-examined. Any error in the trial court’s
ruling is harmless.4 (See People v. Cudjo (1993) 6 Cal.4th 585,
611 [we review the erroneous exclusion of evidence for whether
it is reasonably probable the defendant would have achieved a
more favorable result had the evidence been admitted].) One
part of the excluded testimony was that Price “never discussed
with me any immigration consequences that stemmed from
entering the plea.” (Italics added.) This statement actually
undercuts appellant’s argument that his attorney misinformed
him that he had a chance of avoiding deportation. The
statement also suggests that appellant was not concerned about
the immigration consequences of his plea because, even though
the plea form and oral advisement informed he could or would be
deported, appellant chose not discuss the subject with his
attorney.
Other parts of his declaration included an uncorroborated
assertion that he would have rejected the plea had his attorney
properly advised him that his conviction “would result in
4 Respondent argues that appellant forfeited the argument
that under section 1473.7 an unavailable defendant may submit
a declaration even though there would be no opportunity for
cross-examination. The point is a question of law without
controverted facts. Accordingly, we find no forfeiture. (See DD
Hair Lounge, LLC v. State Farm General Ins. Co. (2018)
20 Cal.App.5th 1238, 1242.)
12
deportation.” (See Vivar, supra, 11 Cal.5th at p. 530 [when a
defendant claims he would not have entered his plea had he
understood it would require his deportation, he must
“ ‘ “corroborate such assertions with ‘objective evidence.’ ” ’ ”].)
From our reading of the record, it is unlikely that if the
trial court had admitted the declarations, the court would have
ruled differently. But we need not speculate for the trial court
has given us the answer: The trial court expressly said
appellant’s statements “would not change” its ruling:
“I believe Mr. Chweya understood he faced deportation. I
think the 364 days was a device that they were trying to
use to hope that he would not be deported. I think that
sometimes occurs. But that is just someone or people
trying to work around something. But I think that Mr.
Chweya knew that he was going to be deported and they
were hoping that if the judge sentenced him a month later,
because he pled in April and was sentenced in May, that
they were hoping that maybe he was able to slip through
the immigration custody.”
We take the trial court’s statement to mean that in
addition to resolving any conflicts in Price’s testimony in the
People’s favor, the court would have resolved any conflicts
between the testimony of Price and appellant’s declarations also
in favor of the People. We conclude any error—error that we do
not find—was necessarily harmless.
DISPOSITION
The judgment is affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR, J. KIM, J.
13