Filed 3/18/22 P. v. Meza CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B312329
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA038036)
v.
LUIS FRANCISCO MEZA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. David Walgren, Judge. Affirmed.
Robert Edward Myers for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Steven D.
Matthews, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Luis Francisco Meza appeals the denial of his motion to
vacate his conviction pursuant to Penal Code1 section 1473.7.
In 2001, appellant entered into a plea bargain in which he
pleaded guilty to one count of second degree robbery. On
February 4, 2021, appellant filed a motion to vacate his
conviction pursuant to section 1473.7.2 The trial court denied the
motion based on its own credibility and factual findings following
its review of the court file and a hearing at which appellant
testified and the court heard argument. Appellant contends that
because he established by a preponderance of the evidence that
he lacked a meaningful understanding of the adverse
immigration consequences of his plea, the trial court erred in
denying his section 1473.7 motion to vacate his conviction. We
disagree and affirm.
FACTUAL3 BACKGROUND
On November 26, 2000, appellant and codefendant Donald
Lee McClellan approached two boys (10 and 11 years old) riding
bicycles. McClellan pointed a knife at one of the boys and
demanded both bicycles. As the victims fled on foot, appellant
and McClellan picked up the bicycles and left. The next day,
police learned that appellant had pawned one of the bicycles at a
pawnshop. Police contacted appellant, who admitted taking and
1 Undesignated statutory references are to the Penal Code.
2Appellant also sought relief under section 1016.5 but
subsequently withdrew those grounds for the motion.
3Appellant pleaded guilty before a preliminary hearing
was conducted. These facts are drawn from the probation report
and the factual basis for the plea established in the plea
proceedings.
2
pawning the bicycle. Thereafter, appellant turned himself in.
The pawned bicycle was recovered undamaged, but the other bike
was not recovered.
Appellant stated that he had given a ride to McClellan and
they stopped at a liquor store. When appellant came out of the
store, McClellan was talking to the two victims. McClellan told
appellant to pick up one of the bicycles, and they put both bikes
into appellant’s car. Appellant pawned one of the bicycles for
$35, which he used to buy food. When the detective called him,
he turned himself in. He told the detective he had purchased two
new bicycles for the victims. But the detective told him it was too
late, so he gave the new bicycles to his nephews.
PROCEDURAL HISTORY AND RELEVANT
BACKGROUND
Appellant and his codefendant were each charged with two
counts of second degree robbery in violation of section 211. In
connection with both robbery counts, it was further alleged that
McClellan personally used a deadly and dangerous weapon, a
knife. (§ 12022, subd. (b)(1).) Appellant was also charged with
petty theft from a pawnbroker or secondhand handler, a
misdemeanor, in violation of section 484.1, subdivision (a). The
charges exposed appellant to a possible sentence of over six years
in state prison.
On January 4, 2001, appellant accepted a plea bargain in
which he pleaded guilty to one count of second degree robbery in
exchange for a low term sentence of two years in state prison
suspended, and formal probation for three years with a year in
county jail. On February 15, 2001, appellant was sentenced
pursuant to his plea bargain, and the remaining counts were
dismissed.
3
The probation officer’s report filed February 15, 2001,
states that appellant was born in San Salvador, El Salvador, and
came to the United States when he was four years old. He
became a permanent resident alien of the United States along
with his parents when he was eight years old. The report also
states that appellant graduated from Manual Arts High School in
Los Angeles in 1997. He then attended Bryman College in
Reseda where he completed a nine-month course in medical
assisting. As of February 2001, appellant had been married for
three years, and had four children, three of whom were living
(ages four, one and one-half, and eight months; his first child died
a day after birth). He separated from his wife in November 2000
and was living with his girlfriend and their three-month-old son
for one month before his arrest. Appellant intended to return to
his wife upon release.
During the plea proceedings on January 4, 2001, appellant
was advised: “If you are not a citizen of the United States, then
your plea in this case will result in your deportation, denial of
naturalization, denial of reentry in this country.” Several times
during the explanation of the conditions of the plea and
appellant’s rights and waivers, appellant indicated he did not
understand something. On each occasion, after consulting with
his attorney and receiving a clarification from the district
attorney, his attorney, or the court, appellant stated he
understood. Finally, before joining in the waivers, concurring in
the plea, and stipulating to the factual basis, defense counsel said
to appellant, “You have asked a lot of questions during this plea.
Are you comfortable and ready to go with the plea as it stands?”
Appellant replied, “Yes, I am.” Counsel asked, “Any other
questions you have with me?” Appellant answered, “No, I don’t.”
4
In November 2000, when he committed the robbery in this
case, appellant was already on 36 months summary probation
after having pleaded nolo contendere to a charge of misdemeanor
forgery in violation of section 470. In that case, appellant had
stolen a blank check from an elderly couple and cashed it for
$800.
On October 18, 2003, while on probation in this case,
appellant was charged with driving under the influence in
violation of Vehicle Code section 23152, subdivision (a). He was
convicted and sentenced to 36 months summary probation.
Thereafter, in 2012, appellant was arrested and charged with
possession of methamphetamine and paraphernalia. Before he
accepted a plea bargain on that charge, appellant was advised of
the immigration consequences of the conviction.
After the 2012 plea, appellant was taken into immigration
custody for 10 months. At that time he was ordered deported but
was not removed. Appellant filed a written motion to vacate his
plea based on ineffective assistance of counsel.4 The motion was
denied on April 12, 2013.
DISCUSSION
The Trial Court Did Not Err in Denying the Motion to
Vacate Pursuant to Section 1473.7
Appellant contends the trial court erroneously denied his
motion to vacate his conviction because he demonstrated by a
preponderance of the evidence that he lacked a meaningful
understanding of the adverse immigration consequences of his
plea. To the contrary, the record reveals the trial court properly
evaluated and considered all the evidence and arguments, and
4 This motion is not part of the record on appeal.
5
made reasonable and factually supported findings and credibility
determinations based on the court file, plea proceedings, and
appellant’s live testimony.
A. Relevant proceedings
Appellant testified at the hearing on the motion to vacate.
When he committed the robbery in 2000, he was 22 years old and
had been a permanent resident alien since he was eight years old.
In 2001, when appellant was considering the People’s offer, his
lawyer did not explain to him why it was better to accept a plea
bargain rather than going to trial and only read aloud from some
paperwork about the immigration consequences of a plea without
explaining them to appellant. Although appellant told his lawyer
he was a permanent resident, his wife was a legal resident, and
he had four children who were U.S. citizens, counsel never
explained how the plea would affect his residency status.
In 2012 appellant was in federal immigration custody for
10 months after the “paraphernalia case.” It was then that he
learned he was subject to deportation because of the robbery
conviction. Thereafter, appellant has checked in with
immigration officials from time to time, but he has never been
removed from the country.
Appellant testified that he never would have pleaded guilty
to the robbery in this case had he known that his plea would
result in deportation or the loss of his permanent resident status.
When he entered the plea, he did not understand he could lose
his residency. He took the deal because of his family; he was not
the one who actually committed the robbery, but he was scared
and wanted to “get out of jail as soon as possible” for his children.
Appellant explained that he came to this country when he was
four years old, and “[e]verything I have is here.”
6
On cross-examination, appellant admitted that as a
juvenile he had a petition filed against him for burglary and he
was on probation for a forgery conviction when he committed the
robbery in this case. He did not recall being advised of any
immigration consequences when he entered a plea in the forgery
case.
Appellant asserted he had nothing to do with the robbery in
this case until he came out of the store and his friend handed him
the bike. He did not know that McClellan had threatened the
boys with a knife and felt forced to take the bike, but did not
know what was actually going on.
Appellant did not remember his lawyer discussing “all the
various options” with respect to the plea, but only, “[E]ither you
take this, or this is going to happen. But if you take this, . . . this
will happen.” As a result of the plea deal appellant got probation
and served 7 months and 20 days in county jail. While he was on
probation, he pleaded guilty to driving under the influence; he
did not recall being advised of any immigration consequences of
his guilty plea at that time. Appellant did recall being advised of
the immigration consequences of entering a plea to possession of
drug paraphernalia in 2012. Appellant then admitted that in
2001 his lawyer read something and “they mentioned something
to [him]” about the immigration consequences, but he was not
told he would be deported. However, later in cross-examination
appellant reiterated that he had no recollection of being advised
by the district attorney at any time during the 2001 proceedings
that if he was not a citizen, his plea would result in his
“ ‘deportation, denial of naturalization, denial of reentry into this
country.’ ”
7
In 2016, appellant was arrested for using another person’s
identification and charged with multiple felony counts of identity
theft. He entered a plea of no contest or guilty to four felonies
and one misdemeanor and was placed on three years of
probation.
Following argument, the trial court noted that appellant
recalled his attorney “reading paperwork that discussed
immigration consequences in some manner.” Then, during the
plea proceedings, he was clearly and unambiguously advised, “ ‘If
you’re not a citizen of the United States, then your plea in this
case will result in your deportation, denial of naturalization, or
denial of reentry into this country.’ ” The court went on, “That is
what he was told. And as the People noted, he was not shy about
asking questions when he wished to ask a question. There was a
lot of give and take, a lot of back and forth. He conferred with his
lawyer, but he was clearly and unambiguously advised of the
immigration consequences.”
The court observed that appellant admitted “he wanted to
get out of custody as soon as possible, and he accepted the plea
agreement which was probation” instead of a possible six years or
more in prison. “So I think what the evidence shows is he was
willing to take the risk, . . . rather than go to trial . . . [¶] I think
he weighed all the risks, and knowing that he could be deported,
he chose to get out sooner and run that risk rather than go to
trial and get convicted.”
The court added that none of the objective,
contemporaneous evidence presented corroborated appellant’s
self-serving statements that he would not have entered the plea
had he known he could be deported. Moreover, appellant had
“multiple crimes of moral turpitude. It does affect his credibility
8
to this court. I also find that he has selective memory. He can
remember things when he was eight years old, but on more
relevant issues as it pertains to being advised of the immigration
consequences, he simply cannot recall.”
The court expressed sympathy for appellant’s predicament,
noting that he came to this country as a child and established his
entire life here. “But sympathy aside, I need to follow the law,
and under the law, the defense has not met their burden. So the
motion to withdraw the plea pursuant to 1473.7 is denied.”
B. Applicable legal principles
Under section 1473.7, a person who is no longer in criminal
custody may file a motion in the trial court to vacate a conviction
or sentence where “[t]he 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
conviction or sentence.” (§ 1473.7, subd. (a)(1).) Our Supreme
Court has explained that “[a] successful section 1473.7 motion
requires a showing, by a preponderance of the evidence, of a
prejudicial error that affected the defendant’s ability to
meaningfully understand the actual or potential immigration
consequences of a plea. (Id., subds. (a)(1), (e)(1).)” (People v.
Vivar (2021) 11 Cal.5th 510, 517 (Vivar).)
After its enactment in 2016, the Legislature amended
section 1473.7 to clarify “that a finding based on prejudicial error
may, but need not, include a finding of ineffective assistance of
counsel.” (Assem. Bill No. 2867 (2017–2018 Reg. Sess.) ch. 825,
Legis. Counsel’s Dig.) “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
9
consequences.” (People v. Abdelsalam (2022) 73 Cal.App.5th 654,
661 (Abdelsalam); People v. Camacho (2019) 32 Cal.App.5th 998,
1010–1011.)
According to our Supreme Court, “showing 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 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.)
In Vivar, the court endorsed independent review by an
appellate court following a trial court’s ruling on a motion to
vacate under section 1473.7. (Vivar, supra, 11 Cal.5th at
pp. 524–527.) Under the independent standard of review, “ ‘an
appellate court exercises its independent judgment to determine
whether the facts satisfy the rule of law.’ ” (Id. at p. 527, quoting
In re George T. (2004) 33 Cal.4th 620, 634.) But the court
cautioned that independent review is not synonymous with de
novo review, explaining that under independent review “[a]n
appellate court may not simply second-guess factual findings that
are based on the trial court’s own observations.” (Vivar, at
p. 527.) Instead, in reviewing a trial court’s section 1473.7 ruling,
the appellate court should “give particular deference to factual
findings based on the trial court’s personal observations of
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witnesses,” but need not defer to the trial court’s findings that
derive entirely from written declarations and other documents
which lend themselves equally to interpretation by the appellate
court and the trial court. (Vivar, at pp. 527–528 [“there is no
reason to conclude the trial court has the same special purchase
on the question at issue” when making its findings on
documentary evidence; indeed, appellate and trial courts “ ‘are in
the same position in interpreting written declarations’ ”].)
“Ultimately it is for the appellate court to decide, based on its
independent judgment, whether the facts establish prejudice
under section 1473.7.” (Vivar, at p. 528.)
C. Analysis
Appellant contends that the trial court erred in denying his
section 1473.7 motion despite appellant’s credible testimony that
he did not understand the immigration consequences of his plea
and the contemporaneous evidence showing that he would have
fought the case if he had understood those consequences. The
record does not support appellant’s contention.
During his testimony, appellant acknowledged that, prior
to his acceptance of the plea, his attorney read something to him
about the immigration consequences of entering a plea. In
addition, although he did not recall being specifically advised by
the court or district attorney about any immigration
consequences, he conceded that “they mentioned something to
[him]” about immigration. He insisted, however, that he was
never told he would be deported.
Appellant was an active participant in the plea proceeding:
When he did not understand something, he spoke up. He
conferred frequently with his attorney, and after he received an
explanation of a point he gave a clear indication that he
11
understood. As the trial court noted, appellant was
unambiguously advised that his plea would result in deportation,
but appellant expressed no confusion and gave no indication he
did not understand. The transcript of the plea also shows that
before joining in the waivers and concurring in the plea,
appellant’s lawyer confirmed with appellant that he had no
further questions. Finally, the court accepted appellant’s guilty
plea and the waivers, finding they were “knowingly, intelligently,
understandingly, expressly and explicitly made.”
The trial court could find no objective evidence on the
record to corroborate appellant’s self-serving testimony. It also
found appellant lacked credibility and seemed to have a selective
memory for facts that suited him and little recollection of
important information about the consequences of his plea. As
Vivar instructs, these “factual determinations that are based on
‘ “the credibility of witnesses the [superior court] heard and
observed” ’ are entitled to particular deference,” even if the
reviewing court may reach a different conclusion based on its
independent examination of the evidence. (Vivar, supra, 11
Cal.5th at p. 527.)
“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.”
(Abdelsalam, supra, 73 Cal.App.5th at p. 664; Vivar, supra, 11
Cal.5th at p. 530 [“when 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” ’ ”].) “It is up to the trial court to
determine whether the defendant’s assertion is credible, and the
12
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.)
Here, unlike the defendant in Vivar, appellant did not
present any objective evidence, such as defense counsel’s
recollection or notes, or appellant’s own letters or documents
showing some effort to avoid deportation at or around the time of
the plea. (See Vivar, supra, 11 Cal.5th at pp. 530–531.) Even
appellant’s own testimony failed to convey that at the time of his
plea, appellant “considered his immigration status ‘the most
important part’ of his decision to plead.” (Id. at p. 530.) To the
contrary, as the trial court found, appellant seemed to have
“weighed all the risks, and knowing that he could be deported,”
he took his chances with a plea to get out of custody sooner rather
than go to trial and still risk deportation. Indeed, “it was
probably a very smart decision because here we are 20 years later
and he still hasn’t been deported. So there’s some who would say
his gamble paid off because two decades later, although he was
convicted and the conviction stands, he has never been deported
even to today’s date.”
Another important point of distinction between this case
and Vivar is that in the latter case, the prosecution had offered a
plea that would not have subjected Vivar to mandatory
deportation, but because he was unaware of any immigration
consequences, Vivar accepted the plea that resulted in mandatory
deportation. (Vivar, supra, 11 Cal.5th at pp. 517–519, 531.) By
contrast, in this case there was no evidence to suggest the People
would have offered and the court would have accepted a plea to
an unidentified immigration-neutral offense or sentence.
13
In sum, appellant failed to carry his burden of establishing
by a preponderance of the evidence that he entered a plea that
was legally invalid due to prejudicial error. The trial court did
not err in denying appellant’s motion to vacate his conviction
under section 1473.7.
DISPOSITION
The order denying the motion under Penal Code section
1473.7 is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
14