Filed 1/6/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B307375
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA115170)
v.
MOHAMMED ABDELSALAM,
Defendant and Appellant.
APPEAL from and an order of the Superior Court of Los
Angeles County. Rogelio G. Delgado, Judge. Affirmed.
Katharine Eileen Greenebaum, under appointment by the
Court of Appeal 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 Steven
D. Matthews, Supervising Deputy Attorneys General, for
Plaintiff and Respondent.
_________________________________
Appellant Mohammed Abdelsalam pled guilty to making
criminal threats and stipulated to a local custody commitment.
The trial court orally told appellant that, as a result of the
conviction, he would be deported. He was also advised in writing
that he would be deported. His attorney reviewed the
immigration consequences of the plea with appellant. Appellant
orally acknowledged that he understood the immigration
consequences of his plea, and stated that he would “wait for
immigration.” Now that deportation proceedings have, as
predicted, been initiated, appellant claims he never understood
that he would be deported and should therefore be allowed to
withdraw his plea. The trial court denied the motion to withdraw
the plea, finding it unsupported by the record. We affirm.
FACTUAL BACKGROUND
In 2017, appellant came to the United States on a fiancé
visa. His fiancée, Mona, did not know that appellant planned to
divorce her once he gained citizenship through the marriage.
Mona discovered a record of appellant’s plan on his phone, as well
as evidence of appellant’s relationships with other women. A
message on appellant’s phone said in part, “[l]et me just get ahold
of the marriage certificate, as soon as I become legal, I can
divorce her and she can go F herself.” Mona broke off their
relationship and pending marriage, reported appellant’s conduct
to the Immigration and Customs Enforcement (ICE) fraud tip
line, and notified the police. When Mona confronted appellant
with what she learned, appellant was upset and fought physically
with her over his phone, which she kept because it contained
evidence of appellant’s intended fraud. Appellant injured Mona,
and she filed for and received a temporary restraining order that
was served on appellant. Appellant violated the restraining
1
order, burglarized Mona’s house, threatened her, and assaulted
Mona at her office after hiding in the trunk of her car with a
knife.
Appellant was charged in a five-count information with
injuring a cohabitant, receiving stolen property, two counts of
disobeying a domestic relations court order, and making criminal
threats. If convicted on all charges, appellant faced up to 10
years in state prison. At the preliminary hearing, appellant
heard Mona testify that when she reported appellant’s attempted
fraud to ICE, she asked ICE to deport him. Appellant also heard
her testify that she met with two ICE agents and they told her,
“Mona, we’re interested in this man. We want him . . . [I]f you
ever meet him anywhere, we will be within half an hour there to
catch him.” After the preliminary hearing, appellant entered into
a plea agreement. He pled no contest to criminal threats and was
sentenced to five years of probation with 364 days in local
custody.
Appellant thereafter was detained by ICE, which initiated
deportation proceedings. Appellant then filed a motion to vacate
his plea. The initial motion was denied without appellant’s
presence or counsel, and without a hearing. This court reversed
and remanded for a hearing. Counsel was appointed and filed a
new motion to withdraw the plea. After argument, the motion
was denied. On appeal, appellant argues he did not meaningfully
understand the adverse immigration consequences of his plea.
A. Advisals During Taking of Plea
Appellant was assisted by an Arabic interpreter and by his
counsel when he entered a change of plea. As part of the written
plea agreement, appellant initialed next to the advisement:
“Immigration Consequences—I understand that if I am not a
2
citizen of the United States, I must expect my plea of guilty or no
contest will result in my deportation, exclusion from admission or
reentry to the United States, and denial of naturalization and
amnesty.” (Italics added.) Appellant also initialed next to the
statements: “Prior to entering into this plea, I have had a full
opportunity to discuss with my attorney the facts of my case, the
elements of the charged offense(s) and the enhancement(s), and
defenses that I may have, my constitutional rights and waiver of
those rights, and the consequences of my plea,” and “I have no
further questions of the Court or of counsel with regard to my
plea(s) and admission(s) in this case.” Appellant signed the
written plea agreement stating he had read and initialed each
paragraph and discussed them with his attorney. His initials
meant that he had read, understood and agreed with what was
stated; that the nature of the charges and possible defenses to
them and the effect of any special allegations and enhancements
had been explained to him; and that he understood and waived
his rights in order to enter into the plea.
Appellant’s trial counsel signed the written agreement
stating that she reviewed the form with her client; that she
explained appellant’s rights to appellant and answered all of his
questions with regards to his rights and the plea; that she
discussed the facts of the case with appellant and explained the
nature and elements of each charge, any possible defenses, and
the effects and consequences of the plea; and that she knew of no
reason that appellant should not enter into the plea. The trial
court also signed the written plea agreement, finding appellant
knowingly and intelligently waived and gave up his rights, with
an understanding of the nature and consequence of the plea.
3
At the plea hearing, appellant’s trial counsel was
specifically asked by the trial court “have you had sufficient time
to discuss immigration consequences with your client?” She
replied “yes.” The trial court further asked, “do you believe your
client understands the immigration consequences?” Trial counsel
responded: “I explained them to him.” During the plea colloquy
in court, appellant orally stated he had a chance to discuss the
charges and any defense with his counsel; that he went over the
plea form with counsel with the help of an interpreter; and that
by initialing next to the statements on the plea agreement he was
indicating he understood what was said. Appellant was also
orally advised: “If you are not a citizen of the United States your
plea will result in your deportation, denial of naturalization and
amnesty, and exclusion from the United States.” (Italics added.)
Appellant responded, “[y]es, I understand. But I’m just going to
wait for immigration.” Appellant further stated no one made any
promises or threats to him to get him to enter into the plea, and
that he entered into the plea freely and voluntarily. The trial
court accepted the plea, finding appellant was entering into the
plea freely and voluntarily, with an understanding of the nature
and consequences of the plea.
B. Appellant’s Motion to Withdraw His Plea
After deportation proceedings were initiated, appellant
filed a motion to withdraw his plea pursuant to Penal Code
section 1473.7.1 Appellant argued in his motion that he “was
never read any reports, his case was never investigated and he
was brought back and forth to court just to be told he was being
given a deal and would be released.” Appellant argued trial
1 All further section references are to the Penal Code unless
otherwise specified.
4
counsel did not explain the immigration consequences to him
prior to taking the plea, and that had he been advised, he never
would have accepted the plea and would have instead gone to
trial.
Appellant also appended his declaration in which he
declared he came into the United States to marry the victim and
because he was afraid of being a Jehovah’s Witness in Egypt, a
country of Muslims; that once in the United States he gave the
victim $94,000 as a down payment on her house and $11,000 in
jewelry; that the victim made up stories and arrested him for a
crime he knew nothing about; that the victim made up the
charges to get him deported and to take the house and jewelry;
that counsel never told appellant about the mandatory adverse
immigration consequences if he took the deal; that counsel told
him to take the deal and he would be released; and that he was
instead picked up by immigration officials.
DISCUSSION
I. Section 1473.7 and the Standard of Review
Section 1473.7 authorizes a person who is no longer in
criminal custody to 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).) “Under this new
provision, 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
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contendere.’ (§ 1473.7, subds. (e)(1), (a)(1).)” (People v. Vivar
(2021) 11 Cal.5th 510, 523 (Vivar).)
In 2019, the Legislature amended section 1473.7 to clarify
that a “finding of legal invalidity may, but need not, include a
finding of ineffective assistance of counsel.” (§ 1473.7, subd.
(a)(1).) Thus, a person seeking relief pursuant to section 1473.7
need only demonstrate prejudice that he would not have entered
the plea had he known about the immigration consequences.
(People v. Camacho (2019) 32 Cal.App.5th 998, 1010–1011
(Camacho).)
“[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. When courts assess whether a petitioner has
shown that reasonable probability, they consider the totality of
the circumstances. 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.” (Vivar, supra, 11 Cal.5th at pp. 529–
530.)
Our Supreme Court recently determined the standard of
review for section 1473.7 motion proceedings. In Vivar, the court
endorsed the independent standard of review. (Vivar, supra,
11 Cal.5th at pp. 524–528.) Under independent review, an
appellate court exercises its independent judgment to determine
whether the facts satisfy the rule of law. (Id. at p. 527.) When
courts engage in independent review, they should be mindful that
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independent review is not the equivalent of de novo review.
An appellate court may not simply second-guess factual findings
that are based on the trial court’s own observations. (Ibid.)
Factual determinations that are based on the credibility of
witnesses the trial court heard and observed are entitled to
particular deference, even though courts reviewing such claims
generally may reach a different conclusion from the trial court on
an independent examination of the evidence even where the
evidence is conflicting. (Ibid.) In section 1473.7 motion
proceedings, appellate courts should similarly give particular
deference to factual findings based on the trial court’s personal
observations of witnesses. (Vivar, supra, at pp. 527–528.)
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 insight on the question at issue; as a
practical matter, the trial court and appellate court are in the
same position in interpreting written declarations when
reviewing a cold record in a section 1473.7 proceeding.
(Vivar, supra, at p. 528.) 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, at
p. 528.)
II. The Trial Court Is Presumed to Have Applied the
Proper Standard of Proof
Appellant argues the trial court erred because “the court
never stated what it believed appellant’s burden was and what
standard it had used to make its determination.” Appellant
further argues the court did not use the preponderance of the
evidence standard when determining whether appellant would
have accepted the plea and whether appellant meaningfully
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understood the adverse immigration consequences of his plea.
Section 1473.7, subdivision (e)(1), explicitly sets forth the
preponderance of the evidence burden of proof. Both appellant
and the People argued the appropriate standard was
preponderance of the evidence. The trial court specifically held
appellant failed to meet his burden. Nothing in the record
suggests the court mistakenly applied any other standard of
proof.
Neither section 1473.7, nor any other authority, requires a
court to articulate on the record that it is using the
preponderance of the evidence standard when denying the
motion. In the absence of evidence to the contrary, it is presumed
the court was aware of and applied the proper burden of proof.
(See Evid. Code, § 664.) “[S]cores of appellate decisions, relying
on this provision, have held that ‘in the absence of any contrary
evidence, we are entitled to presume that the trial
court . . . properly followed established law.’ ” (Ross v. Superior
Court of Sacramento County (1977) 19 Cal.3d 899, 913 (Ross);
accord, People v. Ramirez (2021) 10 Cal.5th 983, 1042 [“Absent
evidence to the contrary, we presume that the trial court knew
the law and followed it”]; People v. Gutierrez (2014) 58 Cal.4th
1354, 1390; People v. Thomas (2011) 52 Cal.4th 336, 361.) “[T]he
rule encompasses a presumption that the trial court applied the
proper burden of proof in matters tried to the court.” (Ross,
supra, 19 Cal.3d at pp. 913–914.) An appellant contending a trial
court failed to follow established law bears the burden of
rebutting the presumption to the contrary. (See People v. Valdez
(2012) 55 Cal.4th 82, 176.)
8
Appellant cites to no case or statute that required the court
to state that the burden of proof argued by both parties was, in
fact, the standard utilized by the court. Appellant has failed to
rebut the presumption that the court was aware of and properly
followed the law.
III. Appellant Was Fully Advised of the Immigration
Consequences of His Plea
Appellant argues trial counsel failed to advise him of the
adverse immigration consequences of his plea, and that he did
not meaningfully understand these consequences. The record
does not support this contention.
During the taking of the plea, appellant was told orally and
in writing that he will be deported. Not that he “might” be
deported, or that he “could” be deported. Appellant’s argument
that he was not aware of the mandatory nature of the deportation
flies in the face of the mandatory language used to describe the
likelihood of deportation. Appellant is not entitled to simply
ignore the admonitions he was given about the consequences of
the plea, and argue that he unilaterally assumed he would be
treated in direct contravention of what he was advised orally and
in writing.
When asked if he understood that his plea “will result in
your deportation,” appellant replied, “[y]es, I understand. I’m
just going to wait for immigration.” Appellant argues this
response supports his contention that he did not understand.
But he directly said he understood. And the comment that he
would “wait for immigration” makes perfect sense. He was being
sentenced to 364 days of custody, with custody credits of 220
days. He would need to finish serving the balance of his custody
while waiting for “immigration” (ICE) to pick him up from jail to
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be deported.2 Nothing about appellant’s oral and written
responses during the plea process indicated he was confused
about the multiple advisals that he would be deported.
A defendant seeking to set aside a plea must do more than
simply claim he did not understand the immigration
consequences of the plea. The claim must be corroborated by
evidence beyond the defendant’s self-serving statements. For
example, in Camacho, the court found “defendant’s claims of
error were supported by his former attorney’s undisputed
testimony . . . that he misunderstood the potential immigration
consequences . . . and he did not explore possible alternatives to
pleading to an aggravated felony.” (Camacho, supra, 32
Cal.App.5th at p. 1009.) In Vivar, the Supreme Court noted that
defendant presented counsel’s e-mail correspondence and
handwritten notes to establish that she did not “advise him as to
the actual immigration consequences of a plea to the drug charge
or any other plea.” (Vivar, supra, 11 Cal.5th at p. 519.) Our
Supreme Court has stated that a defendant’s claim that “he
would not have pled guilty if given competent advice ‘must be
corroborated independently by objective evidence.’ ” (In re
Resendiz (2001) 25 Cal.4th 230, 253 (disapproved on other
grounds, Padilla v. Kentucky (2010) 559 U.S. 356, 370), quoting
In re Alvernaz (1992) 2 Cal.4th 924, 938; see also, People v.
Duarte (2000) 24 Cal.4th 603, 611; People v. Mejia (2019)
2 Appellant had also heard Mona testify that she reported his
attempted immigration fraud to ICE, asked that ICE deport him,
and that ICE agents told her they wanted to “catch him.”
An agent of Homeland Security was present at appellant’s
preliminary hearing. Appellant had no reason to believe ICE
would allow him to stay in the United States.
10
36 Cal.App.5th 859, 872; In re Hernandez (2019) 33 Cal.App.5th
530, 547.) “It is up to the trial court to determine whether the
defendant’s assertion is credible, and the court may reject an
assertion that is not supported by an explanation or other
corroborating circumstances.” (People v. Martinez (2013) 57
Cal.4th 555, 565 (Martinez).)
Here, appellant offered no contemporaneous evidence such
as an affidavit and/or testimony by trial counsel, or counsel’s files,
notes, or email correspondence. This is a case unlike Vivar,
where the written advisal informed defendant he “may” be
subject to deportation, and counsel stated “possible” deportation
was discussed with defendant. (Vivar, supra, 11 Cal.5th at p.
519.) Appellant has presented no independent evidence that he
was told anything other than that he would be deported.
Section 1473.7, subdivision (a)(1), requires a defendant to
show that his “ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse
immigration consequences of a plea” was damaged by an error.
(Italics added.) Appellant has failed to do so. But even if he had
met this burden, he was required to further show that the
damage was caused by “prejudicial error.” (Ibid.; Vivar, supra,
11 Cal.5th at p. 528.) As recently explained in Vivar, “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 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
11
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.” (Vivar, supra, at pp. 529–530.)
The defendant in Vivar had lived in the United States for
40 years. (Vivar, supra, 11 Cal.5th at p. 530.) Appellant, by
contrast, had just arrived here. And he was admitted on a
fraudulently procured fiancé visa, with an intent to gain
citizenship by deception. In the short time he was here,
appellant engaged in conduct that got him arrested for stalking,
assaulting, burglarizing and threatening the person who had
made his presence here possible. She wanted him deported.
Deportation agents literally sat in on his preliminary hearing.
He faced 10 years in prison, and now claims he would have
somehow avoided deportation and rejected the plea agreement
that resulted in only a few months of additional custody.3
Appellant has also failed to present evidence that at the
time of the plea, he “had reason to believe an immigration-
neutral negotiated disposition was possible.” (Vivar, supra, 11
Cal.5th at p. 530.) He did not offer an expert declaration opining
3 Appellant now claims that avoiding deportation was his
primary goal because he had changed religions and faced
religious persecution in Egypt. It is apparent that appellant did
not want to live in Egypt, since he was willing to commit fraud to
immigrate to the United States. But that does not mean that he
was willing to jettison a plea offer and risk spending years in
prison on the off-chance he might avoid deportation (despite
being told he would be deported). He fails to explain why he
would not have believed he had the option after deportation to
relocate to another country with less religious persecution, since
he had no preexisting ties to the United States.
12
that alternative, nondeportable dispositions would have been
available and acceptable to the prosecutor. (People v. Olvera
(2018) 24 Cal.App.5th 1112, 1118.) His counsel now engages in
speculation that he could have pled to burglary, without any
citation from the record indicating that disposition would have
been entertained by the prosecutor. And the issue is whether
appellant had reason to believe a nondeportable disposition was
available. He did not present a declaration from trial counsel
that he was given such advice (which would have been contrary
to the direct plea advisals that deportation would occur). (Cf.
Camacho, supra, 32 Cal.App.5th at p. 1009 [“[D]efendant’s claims
of error were supported by his former attorney’s undisputed
testimony”]; Vivar, supra, 11 Cal.5th at p. 531.)
The trial court also indicated the testimony at the
preliminary hearing demonstrated the People could have filed
additional and even more serious charges. Thus, if appellant had
rejected the plea and insisted on a trial, although he “would for a
period have retained a theoretical possibility of evading the
conviction that rendered him deportable and excludable, it is
equally true that a conviction following trial would have
subjected him to the same immigration consequences.” (In re
Resendiz, supra, 25 Cal.4th at p. 254; see also Martinez, supra 57
Cal.4th at p. 564 [whether a more favorable result was not
reasonably probable is a factor for the trial court to consider
when assessing the credibility of a defendant’s claim that he
would have rejected the plea bargain if properly advised].)
Appellant has not explained why anyone would reasonably
have expected that ICE would forgo deportation proceedings
against someone who admitted in writing they were temporarily
getting married solely to obtain citizenship. Appellant has not
13
shown that even if he had made an error in entering into the
plea, it was “prejudicial” within the meaning of the statute.
At its core, this case comes down to answering the question:
Can a defendant be told repeatedly that his plea will result in
deportation, confirm he understood, present no contrary evidence
from the attorney who advised him, and then withdraw the plea
with the claim that he did not understand he would be deported?
Our answer under the facts of this case is “no.” The trial court
properly denied appellant’s motion to vacate his conviction
pursuant to section 1473.7.
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION
HARUTUNIAN, J.*
We concur:
GRIMES, Acting P. J.
STRATTON, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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