Filed 12/20/21 P. v. Ponce CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B311390
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA060571-01)
v.
SERGIO PONCE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Affirmed.
Michael Poole for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr. and
Stephen D. Matthews, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
A person who pled guilty to a crime without
understanding the negative immigration consequences of
doing so may move the court under Penal Code section
1473.7, subdivision (a)(1), to withdraw that plea after release
from custody.1 The moving party must demonstrate both
contemporaneous ignorance of the adverse immigration
consequences of the plea when made, and a reasonable
probability that absent such ignorance, the party would not
have pled guilty. (People v. Vivar (2021) 11 Cal.5th 510,
529.) The party must also demonstrate that the challenged
conviction “is currently causing or has the potential to cause
removal or the denial of an application for an immigration
benefit, lawful status, or naturalization.” (§ 1473.7, subd.
(e)(1).)
In 2004, appellant Sergio Ponce pled guilty to one
count of violating section 496, subdivision (a) (section
496(a)), for receiving stolen property. He was sentenced to
time served (12 days), three years of probation, and 40 days
of community service. In 2020, he moved to withdraw his
guilty plea, arguing that his conviction constituted an
aggravated felony under the Immigration and Nationality
Act and would therefore negatively affect his ability to be
naturalized, which he had not understood when pleading
guilty. The superior court denied the motion, not deciding
whether his conviction constituted an aggravated felony, but
1 Undesignated statutory references are to the Penal Code.
2
finding that appellant was not entitled to relief because he
had understood the immigration consequences of his guilty
plea when he made it.
On appeal, appellant no longer contends his conviction
constitutes an aggravated felony. Instead, he argues it is a
crime involving moral turpitude, which would have the same
negative immigration consequences. We find appellant has
demonstrated neither the requisite negative immigration
consequences from his guilty plea, nor his ignorance of any
such potential consequences. We therefore affirm the
superior court’s order.
STATEMENT OF RELEVANT FACTS
A. Underlying Crime
A felony complaint was filed in 2004, alleging that
appellant had violated section 496(a). Appellant was
released on bail. At a plea hearing in which he expressed his
intention to plead guilty, the prosecutor advised him: “[I]f
you are not a citizen of the United States, your change of
plea here today would result in your being deported, denied
reentry into this country and denied naturalization. Do you
understand that?” Appellant responded: “Yes.” Appellant
also confirmed no one had promised him “anything different
than what we talked about here in open court . . . .”
Appellant agreed he was changing his plea “freely and
voluntarily” because he believed it was “in [his] best
interest.” He then pled guilty “to the charge in felony
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complaint NA060571, in count 1, a violation of Penal Code
section 496(a), receiving stolen property . . . .” The court
found the plea to have been “knowingly, intelligently, [and]
freely made with an understanding of the consequences.”
The court sentenced appellant to 12 days in jail (for which he
received credit), three years of probation, and 40 days of
community service. In 2006, the court agreed to deem the
count a misdemeanor, and then dismissed it pursuant to
section 1203.4.2
B. Section 1473.7 Motion
In April 2020, appellant moved to withdraw his guilty
plea, arguing that his conviction under section 496(a)
“constitutes an aggravated felony theft offense under section
101(a)(43)(G) of the [Immigration and Nationality] Act,” and
thus was grounds for “inadmissibility and removability.”
The motion further alleged that appellant “did not
meaningfully understand the immigration consequences of
2 Section 1203.4, subd. (a)(1) provides: “In any case in which
a defendant has fulfilled the conditions of probation for the entire
period of probation, or has been discharged prior to the
termination of the period of probation, . . . the defendant shall, at
any time after the termination of the period of probation . . . be
permitted by the court to withdraw his or her plea of guilty . . .
and enter a plea of not guilty . . . and . . . the court shall
thereupon dismiss the accusations or information against the
defendant.” However, “[f]or immigration purposes, a person
continues to stand convicted of an offense notwithstanding a later
expungement under a state’s rehabilitative law.” (Ramirez-
Castro v. I.N.S. (9th Cir. 2002) 287 F.3d 1172, 1174.)
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this plea and he did not defend against the serious
immigration consequences because it wasn’t until 2017, that
the law was clarified that a conviction under Cal. Penal Code
section 496 is an aggravated felony theft offense under
section 101(a)(43)(G) of the Act . . . .” Appellant additionally
filed a declaration attesting that if he had understood the
immigration consequences of his plea, he “would not have
entered into the plea bargain and would have sought to
negotiate a different bargain that would not result in
inadmissibility for immigration purposes.” He claimed to be
a permanent resident who “would like to apply for
naturalization but this conviction will prevent that.” The
People opposed appellant’s motion, arguing he had failed to
show he was inadequately advised of the immigration
consequences of his plea and that, in any case, the charge to
which he pled guilty did not constitute an aggravated felony
under federal immigration law. The court denied appellant’s
motion, declining to decide whether appellant’s offense
constituted an aggravated felony, but finding that appellant
“meaningfully understood each of the rights he was giving
up as well as the consequences . . . .” Appellant timely
appealed.
DISCUSSION
“A person who is no longer in criminal custody may 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
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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).)
“[S]howing 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.” (People v. Vivar,
supra, 11 Cal.5th at 529; see also People v. Mejia (2019) 36
Cal.App.5th 859, 862 (Mejia) [“to establish a ‘prejudicial
error’ under section 1473.7, 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 probable he
would have instead attempted to ‘defend against’ the
charges”].) Additionally, when making a motion “pursuant
to paragraph (1) of subdivision (a) [of section 1473.7], the
moving party shall also establish that the conviction or
sentence being challenged is currently causing or has the
potential to cause removal or the denial of an application for
an immigration benefit, lawful status, or naturalization.”
(§ 1473.7, subd. (e)(1).)
Denials of section 1473.7 motions are reviewed
independently. (People v. Vivar, supra, 11 Cal.5th at 527.)
“‘[U]nder independent review, an appellate court exercises
its independent judgment to determine whether the facts
satisfy the rule of law.’” (Ibid.) “Where, as here, the facts
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derive entirely from written declarations and other
documents, . . . ‘[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 528.) “Ultimately it is for the appellate court to
decide, based on its independent judgment, whether the
facts establish prejudice under section 1473.7.” (Ibid.) The
moving party’s burden of proof is a preponderance of the
evidence. (§ 1473.7, subd. (e)(1).)
A. Appellant Fails to Establish His Conviction
May Deny Him Immigration Benefits
Below, appellant argued his conviction constituted “an
aggravated felony offense under section 101(a)(43)(G) of the
[Immigration and Nationality] Act,” and thus was grounds
for “inadmissibility and removability.” On appeal, appellant
no longer makes this argument, but instead contends that a
“conviction for violating California Penal Code §496 may be
considered to be a categorically a crime [sic] involving moral
turpitude[] (‘CIMT’) for immigration purposes.” 3 (Fn.
omitted.) We disagree that appellant’s conviction
categorically constitutes a crime involving moral turpitude.
3 As the People point out, an “‘aggravated felony’” does
include “a theft offense (including receipt of stolen property)” but
only when “the term of imprisonment [is] at least one year.” (8
U.S.C.S. § 1101, subd. (a)(43)(G).) Appellant’s term of
imprisonment was 12 days.
7
“[I]n determining whether a state crime of conviction
constitutes a crime involving moral turpitude (CIMT), we
apply the categorical approach . . . .” (Hernandez-Gonzalez v.
Holder (9th Cir. 2015) 778 F.3d 793, 801.) “Pursuant to the
categorical approach, we ‘compare the elements of the
statute forming the basis of the defendant’s conviction with
the elements of the “generic” crime—i.e., the offense as
commonly understood.’ [Citation.] A state offense with the
same or narrower elements as the generic offense defined by
federal law is a categorical match. [Citation.] However, ‘[a]
state statute is overbroad if there is a realistic probability of
its application to conduct that falls beyond the scope of the
generic federal offense.’ [Citation.] [¶] If the statute of
conviction is overbroad, we determine whether the statute is
divisible. [Citation.] A statute is divisible if it has ‘multiple,
alternative elements, and so effectively creates several
different crimes.’ [Citation.] If an offense has an indivisible
set of elements with different means of committing one
crime, it is indivisible, and our inquiry ends. [Citation.] [¶]
If the statute is divisible, we apply the modified categorical
approach and ‘examine judicially noticeable documents of
conviction “to determine which statutory phrase was the
basis for the conviction.”’ [Citation.]” (Fernandez v. Barr
(9th Cir. 2020) 969 F.3d 1077, 1085-1086.)
In Castillo-Cruz v. Holder (9th Cir. 2009) 581 F.3d
1154, the Ninth Circuit noted that “a conviction for receipt of
stolen property under § 496 is not categorically a crime of
moral turpitude because it does not require an intent to
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permanently deprive the owner of property.” (Id. at 1161.)
There is no need to continue to a “modified categorical
approach” because section 496(a) is indivisible. The
elements of the crime are “(1) stolen property; (2) knowledge
that the property was stolen; and (3) possession of the stolen
property.” (People v. King (2000) 81 Cal.App.4th 472, 476.)
The statute lacks “‘multiple, alternative elements’” that
“‘create[] several different crimes.’” (Fernandez v. Barr,
supra, 969 F.3d at 1086; see also United States v. Bahena
(C.D.Cal. 2017) 2017 U.S.Dist.LEXIS 142102, *16, *17
[ending inquiry into whether section 496(a) constituted an
aggravated felony after concluding it was “both overbroad
and indivisible”].) Because appellant’s sole basis for
contending that his section 496(a) conviction would have
negative immigration consequences is that it may be deemed
a crime involving moral turpitude, appellant has failed to
establish that his conviction “is currently causing or has the
potential to cause removal or the denial of an application for
an immigration benefit, lawful status, or naturalization.”
(§ 1473.7, subd. (e)(1).)
Appellant argues that In re Diaz-Lizarraga (2016) 26 I.
& N. Dec. 847 “adopted a more expansive standard” for
determining whether a theft offense constitutes a crime
involving moral turpitude. There, the Board of Immigration
Appeals (BIA) held that a theft crime was one of moral
turpitude if it required “an intent to deprive the owner of his
property either permanently or under circumstances where
the owner’s property rights are substantially eroded.” (Id. at
9
854.) Appellant implies that under this newly articulated
standard, his 2004 conviction could deny him immigration
benefits. We need not decide whether appellant is correct
because the new standard does not apply to his conviction.
“Before Diaz-Lizarraga, the BIA’s rule was that ‘a theft
offense categorically involves moral turpitude if—and only
if—it is committed with the intent to permanently deprive
an owner of property.’ [Citations.] But in Diaz-Lizarraga,
the BIA changed the threshold for theft offenses to qualify as
CIMTs.” (Maie v. Garland (9th Cir. 2021) 7 F.4th 841, 847.)
When a person “pleaded no contest to the relevant charge
before the BIA changed its interpretation, the new standard
does not apply retroactively to his case.” (Barbosa v. Barr
(2019) 926 F.3d 1053, 1058.) Therefore, the new standard
will not apply retroactively to appellant’s 2004 conviction for
receiving stolen property. Appellant cites no authority to the
contrary.
B. Appellant Fails to Establish Ignorance of
Any Adverse Immigration Consequences
“[T]o establish a ‘prejudicial error’ under section
1473.7, 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 probable he
would have instead attempted to ‘defend against’ the
charges.” (Mejia, supra, 36 Cal.App.5th at 862.)
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On appeal, appellant claims he received the following
advisement: “‘If you are not a citizen, you are hereby advised
that conviction of the offense for which you have been
charged 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.’”
He argues this was inadequate because “[d]efendants must
be advised that they will be deported, excluded, and denied
naturalization as a mandatory consequence of the
conviction.” (See People v. Patterson (2017) 2 Cal.5th 885,
895-896 [warning that defendant’s plea “‘may’ have adverse
immigration consequences ‘cannot be taken as placing [the
defendant] on notice that, owing to his particular
circumstances, he faces an actual risk of suffering such’”].)
But appellant cites nothing to demonstrate that he received
this advisement, and the record belies his claim. Instead,
the record demonstrates he was asked if he understood that
“if you are not a citizen of the United States, your change of
plea here today would result in your being deported, denied
reentry into this country and denied naturalization.”
Appellant responded that he did.
Though appellant claimed in his declaration
supporting the section 1473.7 motion that he did not
“meaningfully understand that this conviction could cause
inadmissibility years after my plea and become disastrous
from an immigration law perspective,” he proffered no
explanation why we should disbelieve his contemporaneous
affirmation that he understood his plea “would result” in
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deportation, denial of reentry, and denial of naturalization if
he was not a citizen. Similarly, while he averred that he
“did not have a chance to investigate the adverse
immigration consequences of my plea,” he did not explain
why he had no such chance; appellant was released on bail,
and presumably had the opportunity to consult with an
immigration attorney. On this record, we find that despite
appellant’s declaration, he failed to establish prejudicial
error by a preponderance of the evidence, even assuming he
faces actual or potential adverse immigration consequences.
Accordingly, the court did not err in denying his motion.4
4 We disagree with appellant’s contention that he is situated
similarly to the appellant in Mejia, where the court found the
appellant had established prejudicial error. (Mejia, supra, 36
Cal.App.5th at 862.) There, the appellant had been advised only
that he “may” be deported. (Id. at 863, italics omitted.)
Furthermore, his counsel advised him he had “‘no choice but to
take the deal’” and did not talk to him about the immigration
consequences of doing so. (Ibid.) Here, by contrast, appellant
was told he “would” be deported. Nor does appellant contend he
was told he had no choice but to accept the plea bargain, and
while his declaration stated generically that he “did not receive
affirmative and competent advice regarding the potential
immigration consequences” of his plea, he failed to explain what
advice he did receive, or why that advice caused him to
misunderstand the consequences.
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DISPOSITION
The court’s order denying appellant’s section 1473.7
motion is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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