Filed 3/13/24 P. v. Tran CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061913
v. (Super. Ct. No. 94SF0646)
THO HOANG TRAN, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Michael J.
Cassidy, Judge. Affirmed.
Patrick Morgan Ford for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Heather
M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
In 1995, Tho Hoang Tran pleaded guilty to multiple felonies and was
sentenced to seven years in prison. He was not a United States citizen, and his
convictions carried adverse immigration consequences. In 2022, Tran moved to vacate
his convictions under Penal Code section 1473.7, subdivision (a)(1), asserting he had
been unaware of the immigration consequences of his plea and would not have entered
the plea had he been aware.1 Following a hearing, the trial court denied his motion. Tran
challenges this ruling, and we affirm, concluding he did not carry his burden to show he
did not understand the immigration consequences of his plea.
FACTS
I. Tran’s 1995 Convictions
In December 1994, the Orange County District Attorney charged Tran,
Johnny Nguyen, and another co-defendant with two counts of second degree robbery,
three counts of assault with a firearm, and three counts of false imprisonment, with
firearm enhancements. The charges carried a maximum penalty of 13 years 4 months in
prison. In May 1995, Tran pleaded guilty as charged pursuant to a plea agreement and
received a stipulated sentence of seven years in prison.
Before pleading guilty, Tran initialed and signed a plea form containing
advisements and waivers of various rights (the Tahl form).2 Among the statements Tran
initialed was the following acknowledgement: “I understand that if I am not a citizen of
the United States, the conviction for the offense charged may have the consequence of
deportation, exclusion from admission to the United States, or denial of naturalization
. . . .”
1
Undesignated statutory references are to the Penal Code.
2
In re Tahl (1969) 1 Cal.3d 122.
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II. Tran’s Section 1473.7 Motion
In 2021, Tran decided to apply for United States citizenship, but after
seeking legal advice, he learned that his 1995 convictions would prevent him from
obtaining citizenship. In 2022, Tran moved to vacate his conviction under sections
1473.7, subdivision (a)(1), contending his plea counsel had not properly advised him of
the immigration consequences of his plea.3 In support, he submitted multiple
declarations.
In his own declaration, Tran related that he was born in Vietnam in 1973
and came to the United States in 1979. He noted that at the time of his conviction in
1995, he was 21 years old and a lawful permanent resident. Tran claimed he accepted the
plea deal he was offered based on his plea counsel’s advice. He asserted that he “did not
fully speak English at the time” and that plea counsel “did not provide a translator during
any stage” of his case. Tran said plea counsel did not properly discuss with him the
immigration consequences of the plea, despite knowing that he was not a citizen.
According to Tran, had he been aware of the immigration consequences, he “would have
made a much different decision.”
Jo-Anna Nieves, the attorney who prepared Tran’s motion, said in her
declaration that Tran’s plea counsel “spoke to a previous member of [Nieves’s] team,
Kathleen Dyer, . . . and relayed to her that he did not in fact warn . . . Tran of proper
immigration concerns.” (Boldface and underscoring omitted.) Finally, Nguyen, Tran’s
co-defendant in 1995, recounted in his declaration that Tran’s plea counsel initially
represented him as well. According to Nguyen, he doubted counsel’s ability to represent
him and obtained separate counsel. While they shared representation, Tran’s plea counsel
3
As discussed further below, section 1473.7, subdivision (a)(1), allows
noncitizens who have served their sentences to have a conviction vacated if it is “legally
invalid due to prejudicial error damaging [their] ability to meaningfully understand . . .
the actual or potential adverse immigration consequences of a conviction.”
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spoke to them very briefly and did not mention any potential immigration consequences.
Even after obtaining separate representation, Nguyen never heard Tran’s plea counsel
mention any immigration consequences. Nguyen was ultimately able to produce a
credible alibi, which resulted in the dismissal of charges against him.
III. Hearing and Ruling
At Tran’s request, the trial court held an evidentiary hearing. At the
hearing, Tran testified he left Vietnam when he was four years old and came to the United
States when he was six. According to Tran, at the time of his conviction, his parents and
other family members lived in the United States, and he had a child who was a United
States citizen. He had only brief conversations with his plea counsel, who never asked
about his immigration status, and Tran did not know a conviction could affect his
immigration status. Plea counsel merely told Tran what his sentence would be under the
plea agreement and showed him where to sign the Tahl form. Tran took the plea deal
because he “had no money for a real attorney, . . . and it didn’t seem like [his attorney]
was . . . really fighting hard,” so he just gave up. He probably would not have taken the
deal if he had been aware of the immigration consequences. On cross-examination, Tran
acknowledged that he attended elementary school in the United States and admitted he
fully understood English at the time of his plea.
Nguyen testified about the 1995 proceedings. He claimed he, Tran, and the
other co-defendant were picked in photo and in-person lineups and there was no other
evidence against them. Nguyen said he had seen Tran’s plea counsel speak with Tran
only briefly and only before court appearances.
Following the hearing, the trial court denied Tran’s motion under section
1473.7 for “failure to show prejudicial error.” Tran timely appealed.
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DISCUSSION
Tran contends the trial court erred by denying his motion under section
1473.7. As explained below, we conclude Tran was ineligible for relief because he failed
to show that he did not understand the immigration consequences of his plea.
I. Governing Principles
“Penal Code section 1473.7[, subdivision (a)(1),] allows noncitizens who
have served their sentences to vacate a conviction if they can establish by a
preponderance of the evidence that their conviction is ‘legally invalid due to prejudicial
error damaging [their] ability to meaningfully understand, defend against, or knowingly
accept the actual or potential adverse immigration consequences of a conviction or
sentence.’ [Citations.]” (People v. Espinoza (2023) 14 Cal.5th 311, 316.) To obtain
relief, “[t]he defendant must first show that he did not meaningfully understand the
immigration consequences of his plea.” (Id. at p. 319.) “Next, the defendant must show
that his misunderstanding constituted prejudicial error,” meaning there was a reasonable
probability that the defendant would have rejected the plea had the defendant correctly
understood its immigration consequences. (Ibid.)
Appeals from a trial court’s rulings on motions under section 1473.7 are
subject to independent review. (People v. Vivar (2021) 11 Cal.5th 510, 524.) “‘[U]nder
independent review, an appellate court exercises its independent judgment to determine
whether the facts satisfy the rule of law.’” (Id. at p. 527.) This standard is not the
equivalent of de novo review. (Ibid.) “[W]hen the trial court’s findings ‘derive entirely
from written declarations and other documents,’ the trial court and the reviewing court
‘“are in the same position,”’ and no deference is owed. [Citation.]” (People v. Espinoza,
supra, 14 Cal.5th at p. 320.) But when the trial court’s findings are based on the
credibility of witnesses it heard and observed, a reviewing court must give “particular
deference” to those findings. (Vivar, at pp. 527-528.)
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II. Analysis
The trial court did not err by denying Tran’s motion under section 1473.7
because he failed to show that he did not understand the immigration consequences of his
plea. Tran contends, and we agree, that the Tahl form he signed was insufficient to warn
him of the actual immigration consequences of his guilty plea, because it warned only
that he “‘may’” suffer those consequences. (People v. Patterson (2017) 2 Cal.5th 885,
895-896 [advisement that conviction “‘may’” have adverse immigration consequences
does not place defendants on notice that based on their particular circumstances, they face
actual risk of suffering those consequences].) Tran fails to show, however, that his plea
counsel did not properly advise him of the immigration consequences of his plea.
In support of his assertion that his plea counsel did not advise him, Tran
provided his own testimony (both live and in a declaration), Nguyen’s testimony (live and
in a declaration), and Nieves’s declaration. Each of these was significantly flawed.
First, Tran’s self-serving testimony did not command trust. As noted, in his
declaration, Tran claimed he “did not fully speak English” at the time of his plea and
faulted his plea counsel for failing to provide a translator “during any stage” of his case.
But in his live testimony, on cross-examination, he admitted he fully understood English
at the time he entered his plea. The blatant falsehood in Tran’s declaration, featuring a
contrived charge against his former counsel, did not inspire confidence in the truth of his
other allegations about counsel’s conduct.
Next, Nguyen’s testimony could not meaningfully support Tran’s claim.
Although they initially shared counsel, Nguyen later obtained separate counsel and did
not claim to have been present when plea counsel discussed the plea agreement with Tran
or when Tran made his plea in court.
Finally, Nieves’s declaration provided no support for Tran’s version of
events. Nieves asserted plea counsel had told Dyer, “a previous member of [her] team,”
that he did not warn Tran of “proper immigration concerns.” (Boldface and underscoring
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omitted.) This testimony constituted inadmissible hearsay evidence. (Evid. Code,
§ 1200.) And even if considered, Nieves’s assertion was entitled to little weight. Tran
did not call either his plea counsel or Dyer to testify, nor did he provide a declaration
from either. Under these circumstances, Nieves’s declaration was suspect. (Id., § 412
[“If weaker and less satisfactory evidence is offered when it was within the power of the
party to produce stronger and more satisfactory evidence, the evidence offered should be
viewed with distrust”].)
Although the trial court observed the testimony of Tran and Nguyen and did
not credit Tran’s claims, we need not address the deference due to the court’s findings.
Based on the evidence discussed above, we independently conclude that Tran did not
carry his burden to show he did not meaningfully understand the immigration
consequences of his plea. Accordingly, the court correctly denied his motion.
DISPOSITION
The trial court’s order is affirmed.
O’LEARY, P. J.
WE CONCUR:
MOORE, J.
GOODING, J.
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