Filed 11/15/22 P. v. Ayala CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A163778
v.
HERBERTH NOEL AYALA, (San Mateo County Super.
Ct. No. SC068457A)
Defendant and Appellant.
In 2009, defendant Herberth Ayala, a citizen of El Salvador, entered a
plea of no contest to one count of assault with a deadly weapon and was
sentenced to three years of probation. Ayala was later deported, reentered
the United States without permission, and was charged with illegal reentry
in federal court. In 2021, Ayala filed a motion to withdraw his 2009 plea
under Penal Code section 1473.7,1 arguing that he did not understand his
plea’s immigration consequence and would not have entered it if he had. In
particular, he alleged that he had been unable to obtain a U-Visa because of
his 2009 conviction and that his sentence had been enhanced in his federal
reentry case on the basis of that conviction. The trial court denied the
motion, concluding that it was untimely, and that Ayala had failed to
establish either that he did not understand the immigration consequences of
1 Further undesignated statutory references are to the Penal Code.
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his plea or that had he understood those consequences, he would not have
entered the plea. We affirm.
BACKGROUND
Ayala entered the United States in 1994 and was granted asylum in
1995. However, because of misdemeanor convictions he suffered in 1997 and
2005, his asylum status was rescinded and he was ordered removed by an
immigration judge on February 5, 2007. He appealed that removal order to
the Board of Immigration Appeals, which upheld it on April 18, 2008. Ayala
appealed that decision to the Ninth Circuit Court of Appeals.
On December 20, 2008, while his Ninth Circuit appeal was pending,
Ayala was involved in a fight outside a bar, during which he picked up a
brick and threw it, striking one victim in the face and another in the
shoulder. When Ayala was subsequently arrested, he was found in
possession of 0.20 grams of cocaine.
On April 24, 2009, the San Mateo County District Attorney filed an
information charging Ayala with two counts of assault with a deadly
weapon—a brick—and/or by means of force likely to produce great bodily
injury (§ 245, subd. (a)(1)) (counts 1 and 2) and one count of possession of
cocaine (Health & Saf. Code, § 11350, subd. (a)) (count 3). The information
further alleged that counts 1 and 2 were serious felonies within the meaning
of section 1192.7, subdivision (c)(23).
On June 29, Ayala entered a plea of no contest to count 2 and admitted
that it constituted a serious felony in exchange for the dismissal of the
remaining counts and a maximum custody term of six months in county jail.
Ayala signed a Spanish version of a standard plea form, the English version
of which stated: “I understand that if I am not a citizen, conviction of the
offense for which I have been charged will have the consequences of
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deportation, exclusion from admission to the United States or a denial of
naturalization.”2 The form also contained a certification by Ayala’s plea
counsel that he “personally read and explained the contents of the above
declaration to the defendant [and] personally observed the defendant fill in
date and sign said declaration [and] after having investigated this case and
the possible defenses thereto, concurs in the defendant’s plea of guilty or nolo
contendere to the charge as set forth by the defendant in the above
declaration and stipulates there is a factual basis for the plea(s).”
On July 29, the trial court sentenced Ayala to time served, suspended
imposition of sentence, and placed Ayala on three years’ supervised probation
with various terms and conditions.
Ayala was deported in February of 2010, and returned to the United
States without permission in May of 2010. The Ninth Circuit Court of
Appeals upheld his removal order a year later, on May 19, 2011. (See
Ayala v. Holder (9th Cir. 2011) 640 F.3d 1095, 1098.)
On July 7, 2021, Ayala filed a motion to vacate his 2009 plea under
section 1473.7, which became effective in 2017 and provides that the 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
2 Only the Spanish version of the plea form is in the record, which
provides: “Entiendo que si soy ciudando Estados Unidos, la condena por el
delito del que se me acusa tendra como resultado que me deporten, y en que
se me prohiba la entrada a los Estados Unidos, y me nieguen la
naturalizacion.” The English version of the form can be found at
https://www.sanmateocourt.org/documents/forms_and_filing/cr-6.pdf.
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contendere.” (Former § 1473.7, subd. (a)(1).) The motion attached a two-page
declaration signed by Ayala, which included the following allegations:
“2. At the time of pleading guilty, I was not informed by my attorney
about the clear immigration consequences of my plea. I was never informed
by my attorney that a violation of Penal Code Section 245(A)(1) would make
me deportable and inadmissible from the United States.
“3. In addition, I was never informed by my attorney that a conviction
under section 245(A)(1) is a crime of violence and crime involving moral
turpitude. I did not have any knowledge that my conviction would affect my
ability to adjust my status or my U-Visa application.
“4. At no other time was I informed by my attorney, in writing or
verbally, of the true and actual immigration consequences of my guilty plea.
I did not have any independent knowledge of any immigration consequences.
“5. My attorney did not advise me of the negative immigration
consequences that would result from my plea. He did not speak with me
about other alternative pleas or sentences that could have protected me from
being deportable and inadmissible, or protected me from being placed in
removal proceedings. I met my criminal defense attorney two times
but we only spoke for a short period. We met one time in the interview room
and the other time in court. I never discussed immigration consequences
with him.
“6. After pleading guilty, l continued to live without knowledge of any
immigration consequences. It was [not] until I was placed into removal
proceedings in 2012 that I became aware that my conviction had statutory
immigration and discretionary consequences, which placed me at risk of
deportation and prevented me from obtaining a U-Visa. In 2012, I was
picked up by Immigration authorities when they were looking for my uncle at
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my uncle’s house. I ended up in removal proceedings and was unable to
defend my deportation because of this conviction. I was subsequently
charged for reentry after deportation. This assault conviction greatly
increased the sentence in my reentry case.
“7. I recently applied for a U-Visa and was denied because of this
conviction. [¶] . . . [¶]
“11. I would have not pled guilty in this case if I would have had
knowledge that my conviction would make me mandatorily deportable and
permanently inadmissible. I, in fact, would have sought, through my
attorney, to obtain an alternative disposition without any immigration
consequences or would have sought a trial by jury. I had a strong case to go
take to trial.”
Ayala’s motion also attached a presentence investigation report from
his federal case, indicating that Ayala was arrested on June 28, 2012 and
pleaded guilty to re-entry of a removed alien (8 U.S.C. § 1326) on July 9,
2013. Ayala’s 2009 assault conviction resulted in a 16-point enhancement to
his offense level under the federal sentencing guidelines.
The motion came on for hearing on September 24, 2021. After hearing
argument, the trial court denied the motion, on two bases. The first was that
the motion was untimely, since section 1473.7 became effective in 2017 but
the motion was not filed until 2021.
The trial court further found that Ayala had not demonstrated that he
was unaware of the immigration consequences of his plea, because the
advisement on the plea stated that those consequences “will” occur, and there
was no credible evidence to the contrary, relying on People v. Olvera (2018)
24 Cal.App.5th 1112 (Olvera).
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The trial court also found that Ayala had not demonstrated that he
would not have entered the plea if he had been properly advised, in part
because the charge “was [an assault] with a brick, so it doesn’t appear to me
as if it was a weak case where the defendant had some significant negotiating
leverage back at the time.”
The trial court went on to conclude that Ayala’s declaration was not
“persuasive or entirely credible; mainly because it is uncorroborated, and
obviously there is a significant motive for the defendant to claim that he
didn’t understand what was going on at the time of his plea,” and detailed
certain inconsistencies in the declaration.
Ayala filed a notice of appeal.
DISCUSSION
Standard of Review and Applicable Law
At the time of the hearing in this case, section 1473.7 provided that “[a]
person who is no longer in criminal custody may file a motion 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. A
finding of legal invalidity may, but need not, include a finding of ineffective
assistance of counsel.”3 (Former § 1473.7, subd. (a)(1).)
3 Effective January 1, 2022, section 1473.7 subdivision (a)(1) has been
reworded without substantive change to provide: “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 conviction or sentence. A
finding of legal invalidity may, but need not, include a finding of ineffective
assistance of counsel.” (See Stats. 2021, ch. 420, § 1, eff. Jan. 1, 2022.)
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“[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. [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. [Citations.]”
(People v. Vivar (2021) 11 Cal.5th 510, 529–530 (Vivar).)
In the trial court, the defendant has the burden of proving prejudicial
error “by a preponderance of the evidence.” (§ 1473.7, subd. (e)(1).) However,
“movants under section 1473.7 must provide evidence corroborating their
assertions.” (People v. Rodriguez (2021) 68 Cal.App.5th 301, 322; see In re
Resendiz (2001) 25 Cal.4th 230, 253 [“petitioner’s assertion he would not have
pled guilty if given competent advice ‘must be corroborated independently by
objective evidence’ ”]; People v. Abdelsalam (2022) 73 Cal.App.5th 654, 664
(Abdelsalam) [“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”].)
On appeal, a trial court’s denial of a section 1473.7 motion is subject to
independent review. (Vivar, supra, 11 Cal.5th at pp. 525–528.) “ ‘[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
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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.]” (Id. at p. 527.) “Where, as here, 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. [Citation.] Ultimately
it is for the appellate court to decide, based on its independent judgment,
whether the facts establish prejudice under section 1473.7.” (Id. at p. 528.)
Ayala Failed to Establish That He Did Not Understand the
Immigration Consequences of his Plea
Ayala argues plea counsel failed to advise him of the potential adverse
immigration consequences of his plea, and that he did not meaningfully
understand those consequences. The record does not support this contention.
As noted, Ayala’s plea form stated: “I understand that if I am not a
citizen, conviction of the offense for which I have been charged will have the
consequences of deportation, exclusion from admission to the United States
or a denial of naturalization.” Ayala’s plea counsel indicated he had
“personally read and explained the contents of the above declaration to the
defendant [and] personally observed the defendant fill in date and sign said
declaration.”
Olvera, supra, 24 Cal.App.5th 1112, is instructive. There, the
defendant signed a plea form that contained the following: “ ‘I hereby
expressly assume that my plea . . . will, now or later, result in my
deportation, exclusion from admission or readmission,’ ” and “ ‘denial of
naturalization and citizenship.’ ” (Id. at p. 1115.) Olvera moved to withdraw
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his plea based on his Sixth Amendment right to the effective assistance of
counsel, which he argued was violated when his trial counsel did not advise
him of the immigration consequences of his plea, and later supplemented his
motion to invoke section 1473.7 when it became operative in January of 2017.
(Id. at pp. 1115–1116.) The Court of Appeal concluded that “even if Olvera’s
counsel had an affirmative duty to advise him on the immigration
consequences of his plea, he satisfied it. The admonition was boilerplate, but
it was unequivocal and accurate. As the trial court observed, the written
admonition on the plea form was ‘pretty straightforward, especially for
2005.’ ” (Id. at p. 1117.) The admonition here was equally unequivocal and
straightforward.
Despite the fact that the trial court expressly relied on Olvera, Ayala
does not cite or discuss that case in his opening brief. Ayala did not file a
reply brief.
The Attorney General also relies on Abdelsalam, supra, 73 Cal.App.5th
654, which Ayala likewise does not cite or discuss. There, the defendant
initialed an advisement on his plea form stating “ ‘I understand that if I am
not a 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,’ ” and initialed
next to statements indicating he had read each paragraph and discussed
them with his attorney. (Id. at p. 662.) At the plea hearing, defendant and
his counsel confirmed that they had discussed the immigration
consequences.4 (Id. at p. 660.) The Court of Appeal rejected defendant’s
4The record in this case does not contain a transcript of Ayala’s plea
hearing; thus, we are unable to determine whether the immigration
consequences advisement was specifically discussed.
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argument that he had not been advised of the immigration consequences of
his plea for the purposes of section 1473.7, despite statements in his
declaration to the contrary:
“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 [People v.] Camacho [(2019) 32 Cal.App.5th
998], 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.” ’ [Citations.] ‘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,
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11 Cal.5th at p. 519.) Appellant has presented no independent evidence that
he was told anything other than that he would be deported.” (Abdelsalam,
supra, 73 Cal.App.5th at p. 664.) So too here.
In addition, other aspects of the record indicate that—as the trial court
put it—Ayala was no “babe in the woods” with respect to the immigration
consequences of his plea. At the time of the plea in 2009, Ayala had had his
asylum status rescinded based on previous misdemeanor convictions, had
appealed that decision to the Board of Immigration Appeals, and had a
pending appeal of that decision before the Ninth Circuit. His probation
report lists four prior offenses between 1997 and 2007, convictions that
presumably came with their own warnings about potential immigration
consequences. In short, we agree with the trial court that Ayala failed to
establish that he was not informed of the immigration consequences of his
plea.
Ayala Failed to Establish That He Would Not Have Entered the
Plea Had He Been Correctly Advised of the Immigration
Consequences
We also agree with the trial court that Ayala has failed to demonstrate
a reasonable probability that he would have rejected the plea if he had
correctly understood its actual or potential immigration consequences. As
noted, “[f]actors 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. [Citations.]” (Vivar, supra, 11 Cal.5th at pp. 529–
530.)
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In 2009, Ayala had been in the United States some 15 years, after
coming to the United States at 21 years old. He was unmarried, but had a
girlfriend of two years, and shared custody of a 3-year old son with his ex-
girlfriend. Beyond this, there is no independent evidence in the record to
suggest that at the time of his 2009 plea, Ayala placed any importance on
avoiding deportation—indeed, he had already lost his asylum status and been
ordered deported on the basis of his previous convictions—or that his
priorities in seeking a plea bargain included avoiding immigration
consequences.
There is also no indication that Ayala “had reason to believe an
immigration-neutral negotiated disposition was possible.” (Vivar, supra,
11 Cal.5th at p. 530.) His declaration asserts in general terms that his
attorney “did not speak with me about other alternative pleas or sentences
that could have protected me from being deportable and inadmissible, or
protected me from being placed in removal proceedings,” and that had he
known of the immigration consequences of his plea, he “would have sought,
through my attorney, to obtain an alternative disposition without any
immigration consequences or would have sought a trial by jury.” But there is
no evidence that any such alternative disposition was available at the time of
Ayala’s plea. (See Olvera, supra, 24 Cal.App.5th at p. 1118 [“Olvera declares
his counsel never advised him of a ‘lesser’ immigration-neutral offense to
which he might have pled. But he does not identify any immigration-neutral
disposition to which the prosecutor was reasonably likely to agree”];
Abdelsalam, supra, 73 Cal.App.5th at pp. 665–666 [no prejudice where
defendant “did not offer an expert declaration opining that alternative,
nondeportable dispositions would have been available and acceptable to the
prosecutor” but merely “engages in speculation that he could have pled to
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burglary, without any citation from the record indicating that disposition
would have been entertained by the prosecutor”].)
Ayala’s opening brief asserts that “alternative immigration-safe plea[s]
existed such as Penal Code section 136.1(b)(1) [dissuading a witness], 243(e)
[spousal battery], 236 [false imprisonment], 237 [false imprisonment by
violence, menace, fraud, or deceit], or 459 [burglary].” But Ayala does not
explain how the facts of his offense—throwing a brick that struck two victims
and being subsequently arrested in possession of 0.2 grams of cocaine—would
have provided any factual basis for a plea to any of these offenses. And even
if such pleas were available, he identifies no evidence in the record that they
would have been entertained by the prosecution. (See Olvera, supra,
24 Cal.App.5th at p. 1118; Abdelsalam, supra, 73 Cal.App.5th at pp. 665–
666.)
Finally, we reject Ayala’s claim of prejudice based on his argument that
had he been properly advised he would have gone to trial, based on the
unexplained assertion in his declaration that “I had a strong case to go take
to trial.” As the trial court noted, Ayala struck two victims with a brick on a
public street, and it is thus unclear why he would have had a strong case at
trial. (See Abdelsalam, supra, 73 Cal.App.5th at p. 666 [“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)”].)5
Because we conclude that the trial court properly denied Ayala’s
5
motion on the merits, we need not reach of the issue of whether the motion
was timely.
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DISPOSITION
The order denying Ayala’s section 1473.7 motion is affirmed.
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_________________________
Richman, Acting P. J.
We concur:
_________________________
Stewart, J.
_________________________
Van Aken, J. *
People v. Ayala (A163778)
*Judge of the San Francisco Superior Court, Judge Christine Van Aken,
sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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