Filed 11/15/22 P. v. Ayala CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B317249
(Super. Ct. No.
Plaintiff and Respondent, F000201307001)
(San Luis Obispo County)
v.
JUAN DAVALOS AYALA,
Defendant and Appellant.
Juan Davalos Ayala appeals from the trial court’s denial of
his motion to vacate two 28-year-old convictions. He contends the
motion should have been granted pursuant to either Penal Code1
section 1473.7 or section 1016.5. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In 1993, prosecutors charged Ayala with gross vehicular
manslaughter while intoxicated (§ 191.5, subd. (a); count 1) and
leaving the scene of an accident involving injury or death (Veh.
Code, § 20001, subd. (a); count 2) after he slammed into the rear
1 Unlabeled statutory references are to the Penal Code.
of a vehicle, killed its driver, and fled on foot. He was held to
answer on both charges at the preliminary hearing. During a
discussion at the conclusion of that hearing, prosecutors noted
that there was a “border patrol hold” on Ayala.
Prosecutors subsequently added a charge of vehicular
manslaughter (§ 192, then-subd. (c)(3); count 3) to the two
charges in the complaint. They reached a plea deal with Ayala
two months later. Before accepting the plea, the trial court asked
Ayala if he was a United States citizen. He said that he was not.
The court then asked if Ayala “underst[oo]d that if [he was]
convicted . . . that [his] conviction may result in exclusion from
the country, deportation, and denial of citizenship.” Ayala said
that he understood. He also said that he had spoken with his
attorney about the case. He then pleaded no contest to counts 2
and 3, and the court dismissed count 1.
Twenty-eight years later, Ayala—purportedly then in
federal custody and immigration removal proceedings—moved to
vacate his convictions pursuant to section 1473.7, claiming that
plea counsel2 “did not properly inform [him] of the immigration
consequences that would accompany [his] plea.” Nor did Ayala
“recall speaking about the immigration consequences” of his plea
with counsel or about the fact that “he was not a U.S. citizen.”
The trial court that accepted his plea similarly “did not properly
advise [him] that [he] was subject to detention or possible denial
of relief, voluntary departure, bar from reentry, and/or any other
[immigration] consequence.” Had counsel or the court properly
advised him, Ayala would have either gone to trial or negotiated
an alternate, immigration-neutral plea.
2 Different
attorneys represented Ayala at the preliminary
hearing and during plea proceedings.
2
Plea counsel testified at the November 2021 hearing on
Ayala’s motion. He said that he did not recall representing
Ayala, did not recall telling Ayala that he could be placed in
deportation proceedings or denied naturalization if he pleaded no
contest, and did not recall advising Ayala to speak to an
immigration specialist. Based on his practices at the time,
however, counsel believed that he would have told Ayala that he
could be denied citizenship if he pleaded because it was generally
his practice to advise a client about the adverse immigration
consequences of certain convictions.
Ayala also testified at the hearing. He said that he
immigrated to the United States from Mexico in 1989, when he
was 19 years old. His mother and two sisters remained in
Mexico; his father and two brothers resided in Los Angeles.
Ayala had no children at the time of his August 1993 plea but
was expecting his first later that year.
Ayala did not recall how many times he met with counsel
before entering his plea. The two never discussed his citizenship
status or the potential immigration consequences of a plea.
Counsel did not tell him that he could be deported as a result of
his plea, that the plea could affect his ability to adjust his status,
or that he should speak to an immigration specialist. Ayala
nevertheless admitted that he “would . . . have taken the plea”
even if he had known that he could have “contested [his] case and
sought relief in immigration court.”
On cross-examination, and contrary to the sworn
declaration attached to his motion, Ayala testified that he was
not currently in federal immigration custody or removal
proceedings; the last time he was in federal custody was 1994.
He did not recall that the prosecutor at the preliminary hearing
3
in his 1993 case stated that there was a “border patrol hold” on
him. He did recall that he was intoxicated when he committed
the offenses underlying that case, however, and that he fled the
scene because did not want to get arrested. He said he took the
plea offered to him because he committed the charged crimes. He
understood that the evidence against him was “overwhelming.”
The trial court denied Ayala’s motion. It found Ayala “was
not a credible witness.” Ayala had a “convenient memory” and
“either lied or made a serious mistake when he said in his
declaration . . . that he was . . . currently in immigration removal
proceedings and in federal immigration custody.” He did not
meet his burden of showing that he was entitled to section 1473.7
relief.
DISCUSSION
Section 1473.7
Ayala contends the trial court should have granted his
section 1473.7 motion because he has shown: (1) that he did not
understand the immigration consequences of his plea, and (2) a
reasonable probability that he would not have pleaded no contest
had he understood those consequences. We disagree.
A person who is no longer in custody may move to vacate a
prior conviction if that conviction was “legally invalid due to
prejudicial error damaging the [person’s] ability to meaningfully
understand, defend against, or knowingly accept the actual or
potential adverse immigration consequences of” their no contest
plea. (§ 1473.7, subd. (a)(1).) For a court to grant a section
1473.7 motion, the moving party must show, by a preponderance
of the evidence, that they could not understand, defend against,
or accept the immigration consequences of their plea. (§ 1473.7,
subd. (e)(1).) The party must also show that their conviction
4
either “is currently causing or has the potential to cause removal
or the denial of an application for an immigration benefit, lawful
status, or naturalization.” (Ibid.) In other words, a person
seeking section 1473.7 relief must show a “reasonable probability
that [they] would have rejected [a] plea if [they] had correctly
understood its actual or potential immigration consequences.”
(People v. Vivar (2021) 11 Cal.5th 510, 529 (Vivar).)
To determine whether a person has established prejudicial
error under section 1473.7, courts consider the totality of the
circumstances. (Vivar, supra, 11 Cal.5th at p. 529.) “Factors
particularly relevant to this inquiry include the [moving party’s]
ties to the United States, the importance the [party] placed on
avoiding deportation, [their] priorities in seeking a plea bargain,
and whether [they] had reason to believe an immigration-neutral
negotiated disposition was possible.” (Id. at pp. 529-530.) Other
relevant factors include the moving party’s ties to their home
country at the time of the plea (People v. Manzanilla (2022) 80
Cal.App.5th 891, 912), the party’s immigration status (People v.
Ogunmowo (2018) 23 Cal.App.5th 67, 80-81), their criminal
history (People v. Camacho (2019) 32 Cal.App.5th 998, 1011
(Camacho)), and their employment history (People v. Soto (2022)
79 Cal.App.5th 602, 611).
Our review is independent. (Vivar, supra, 11 Cal.5th at p.
527.) But that does not mean that we will “second-guess factual
findings that are based on the trial court’s own observations”;
factual and credibility determinations made during section
1473.7 proceedings are entitled to “particular deference.” (Vivar,
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 purchase on the
5
question at issue; as a practical matter, ‘the trial court and this
court are in the same position in interpreting written
declarations’ when reviewing a cold record.” (Id. at p. 528,
alterations omitted.) “Ultimately it is for [this] court to decide,
based on [our] independent judgment, whether the facts establish
prejudice under section 1473.7.” (Ibid.)
Ayala fails to make the requisite showings here. As to his
purported lack of understanding of the immigration consequences
of his plea, at the preliminary hearing prosecutors said that
Ayala was subject to a “border patrol hold.” Nothing in the
record shows that Ayala did not hear or understand that
statement. To the contrary, at the subsequent plea hearing
Ayala said that he had spoken with his attorney (who typically
advised his clients about the potential immigration consequences
of certain convictions) and that he understood that his conviction
could “result in exclusion from the country, deportation, and
denial of citizenship.” Those representations and their
acceptance by the court that took Ayala’s plea constitute
“formidable barrier[s]” to granting a section 1473.7 motion.
(Blackledge v. Allison (1977) 431 U.S. 63, 73-74.)
To overcome those barriers, Ayala now asserts that he does
not recall the prosecutor’s statements at the preliminary hearing,
discussing his case with counsel, or telling the trial court that he
understood that his plea may have immigration consequences.
But he has not directed us to any contemporaneous evidence to
corroborate these assertions. (See, e.g., People v. Abdelsalam
(2022) 73 Cal.App.5th 654, 664; People v. DeJesus (2019) 37
Cal.App.5th 1124, 1134.) They were thus properly rejected as
incredible. (People v. Martinez (2013) 57 Cal.4th 555, 565.)
6
Ayala also fails to show prejudice. Ayala committed the
crimes underlying his plea just four years after he moved to the
United States. He points to nothing in the record showing that
during those four years he strengthened his ties to the United
States, severed the ties to his friends and family who remained in
Mexico, or prioritized avoiding deportation. Ayala also points to
no evidence showing that he took steps toward gaining legal
immigration status or developed strong employment ties to the
United States.
Additionally, while Ayala had only a minor criminal history
when he committed the crimes underlying his plea, nothing in
the record shows that he believed an immigration-neutral
possible plea was on the table. Rather, at his section 1473.7
hearing Ayala testified that he accepted the plea in his case
because he committed the charged crimes and understood that
the evidence against him was “overwhelming.” He even admitted
that he would have pleaded no contest even if he had known that
he could have instead “contested [his] case and sought relief in
immigration court.” The record thus does not indicate that Ayala
“‘would have chosen to lose the benefits of the plea bargain
despite the possibility or probability [that adverse immigration
consequences] would nonetheless follow.’” (Camacho, supra, 32
Cal.App.5th at p. 1010; see, e.g., People v. Garcia (2022) 79
Cal.App.5th 1059, 1066 [prejudice not shown where
contemporaneous evidence failed to show that prosecutors would
have agreed to immigration-neutral disposition and evidence
against defendant was “‘very strong’”].)
This case is unlike Vivar, supra, 11 Cal.5th 510, on which
Ayala relies. The Vivar defendant immigrated to the United
States when he was just six years old. (Id. at p. 530.) He had
7
been in the country for 40 years by the time he entered his plea,
during which time he got married and had two children and two
grandchildren. (Ibid.) He “had virtually no ties to Mexico, spoke
Spanish ‘like an American,’ and found it ‘difficult to function in
Mexican society because people treat[ed] him like an outsider.’”
(Ibid., alterations omitted.)
Additionally, trial counsel’s contemporaneous notes
corroborated the defendant’s concerns about the immigration
consequences of his plea. (Vivar, supra, 11 Cal.5th at p. 530.)
Those notes also indicated that prosecutors offered a plea deal
that could have avoided adverse immigration consequences. (Id.
at p. 531.) The totality of the circumstances thus showed a
“reasonable probability” that the defendant would have rejected
the plea if he had understood its immigration consequences.
(Ibid.) The circumstances here show the opposite.
Section 1016.5
Ayala alternatively contends the trial court should have
vacated his no contest plea pursuant to section 1016.5. The
contours of this contention are not precisely clear. Ayala appears
to argue: (1) the immigration advisement given during his plea
colloquy erroneously omitted the phrase “pursuant to the laws of
the United States,” and (2) the omission of that phrase prejudiced
him.
But Ayala did not present this contention during the
proceedings below—indeed, a reference to section 1016.5 appears
nowhere in Ayala’s motion or the transcript of the hearing on
that motion. Ayala also fails to support his contention with any
reasoned argument or citation to relevant legal authority. The
contention is forfeited. (People v. Suarez (2020) 10 Cal.5th 116,
149 [arguments raised for the first time on appeal are forfeited];
8
People v. Reardon (2018) 26 Cal.App.5th 727, 740 [“the failure to
explain with particularity how a claimed error caused prejudice
forfeits the claim”].)
DISPOSITION
The trial court’s order denying Ayala’s motion to vacate his
convictions, entered November 15, 2021, is affirmed.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
9
Teresa Estrada Mullaney, Judge
Superior Court County of San Luis Obispo
______________________________
Law Offices of Zulu Ali & Associates, Karin Khachatorian
and Whitney Ali for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle, Steven D. Matthews and
David F. Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.