Filed 9/27/18
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D073436
Plaintiff and Respondent,
v. (Super. Ct. No. SCS152019)
PABLO GONZALEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Theodore M.
Weathers, Judge. Affirmed.
Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Seth M. Friedman and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and
Respondent.
In August 2000, Pablo Gonzalez pled guilty to possession for sale of marijuana.
(Health & Saf. Code, §11359.) The trial court sentenced Gonzalez to 74 days in custody and three years' summary probation. After serving his 74 days in custody, Gonzalez was
deported in October 2000. Gonzalez reentered the United States about a year later. He
subsequently was convicted of possession of a controlled substance for sale (Health &
Saf. Code, § 11378), criminal threats (Pen. Code,1 § 422), and domestic battery (§ 243,
subd. (e)). In June 2002, Gonzalez was deported again. He reentered the United States,
but was deported yet again in April 2017.
On January 1, 2017, section 1473.7 became effective. That statute allows a person
no longer imprisoned or restrained to move to vacate a conviction or sentence for one of
two reasons, including that "[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 plea of guilty or nolo contendere." (§ 1473.7, subd. (a)(1).) In August 2017, Gonzalez
moved to vacate his 2000 conviction under section 1473.7. After an evidentiary hearing,
the superior court denied Gonzalez's motion.
Gonzalez appeals, contending the court erred in denying his motion under section
1473.7. Specifically, he claims he established prejudicial error based on his counsel's
failure to adequately advise him of the immigration consequences of his plea and failure
to seek an immigration safe alternative disposition. We conclude Gonzalez's arguments
lack merit. As such, we affirm.
1 Statutory references are to the Penal Code unless otherwise specified.
2 FACTUAL AND PROCEDURAL BACKGROUND
Guilty Plea
In July 2000, Gonzalez was arrested after crossing the border in a vehicle
containing 74 pounds of marijuana. He was charged with transportation of marijuana
(Health & Saf. Code, § 11360) and possession of marijuana for sale (Health & Saf. Code,
§ 11359).
Gonzalez ultimately pled guilty to possession of marijuana for sale at a hearing on
July 26, 2000 at his arraignment in the high intense drug trafficking area court. At that
hearing, two other defendants were present. The court asked the defendants if they could
read and understand English. Gonzalez responded in the affirmative. The court then
informed the defendants of the potential immigration consequences of a guilty plea:
"Each of you should understand if you're not citizens of the United States, your guilty
plea will affect your status in this country. And it will result in the departure, denial of
citizenship or exclusion."2
The court also asked Gonzalez if he read and understood his change of plea form.
Gonzalez answered, "Yes." Gonzalez's change of plea form appears in the record. As
2 The parties quibble about the court's use of the word "departure." The People claim the court misspoke or the court reporter transcribed the wrong word. To this end, the People assert the court either meant or actually said "deportation" instead of "departure." Gonzalez counters there is no evidence to support the conclusion that the appearance of the word "departure" in the reporter's transcript is scrivener's error. This disagreement is immaterial to our analysis here.
3 pertinent here, the form states: "I understand that if I am not a citizen of the United
States a plea of Guilty or No Contest can or will result in removal or deportation,
exclusion from admission to this country, and denial of naturalization." Gonzalez's
initials appear in the box next to that statement.
The form also contained the following statement signed by Gonzalez's attorney:
"I am the attorney for the defendant in the above-entitled case. I personally read and explained to the defendant the entire contents of this plea form and any addendum thereto. I discussed all charges and possible defenses with the defendant, and the consequences of this plea. I personally observed the defendant fill in and initial each item, or read and initial each item to acknowledge his/her understanding and waivers. I observed the defendant date and sign this form and any addendum. I concur in the defendant's plea and waiver of constitutional rights."
The court subsequently sentenced Gonzalez to custody for 74 days and placed him
on probation for three years. After serving his time in custody, Gonzalez was deported
on October 6, 2000.
The Motion to Vacate
On August 29, 2017, Gonzalez filed a motion to vacate conviction based on
section 1473.7. In his motion, Gonzalez argued that (1) his counsel violated the duty to
investigate and accurately advise him about the specific immigration consequences of a
plea and (2) his counsel failed to defend against immigration consequences of a plea
because he did not attempt to plea bargain for an immigration safe alternative disposition.
4 Among other material submitted in support of his motion, Gonzalez submitted a
self-declaration. In that declaration, Gonzalez stated that he believed he would have the
opportunity to challenge his deportation even if he pled guilty. He also declared that, at
the time he pled guilty, his "English was not very good[,]" which lead to
"confusion/misunderstanding." Gonzalez did not remember talking to a lawyer or
speaking to anyone in Spanish. He also claimed that he does not recall if anyone told him
that he would be deported if he pled guilty. Gonzalez represented that had he been told
of the deportation consequences of pleading guilty, he would have "fought" his case and
let his "lawyer try for a better deal or to win the case."
The People opposed Gonzalez's motion, contending Gonzalez could not prove by a
preponderance of the evidence that there was a prejudicial error damaging his ability to
meaningfully understand, defend against, or knowingly accept the actual or potential
adverse immigration consequences of a guilty plea.
At the hearing on Gonzalez's motion, Gonzalez's counsel offered the testimony of
two witnesses: Jose Luis Guerrero and Leticia Gonzalez (Leticia).
Guerrero, who was a deputy public defender at the time, represented Gonzalez
when he pled guilty. Guerrero had no independent recollection of Gonzalez's case.
However, after reviewing his office's case management system, he acknowledged that it
appeared he had been assigned Gonzalez's case in 2000. Guerrero stated that, in 2000, a
criminal defense attorney would provide a defendant with a standard immigration advisal,
5 but would not consider the immigration consequences of a particular crime. Guerrero
testified that he would have provided Gonzalez with immigration advice like what was
outlined on the change of plea form at that time. Guerrero explained that a defense
counsel's approach to advising a criminal defendant of immigration consequences
changed in 2010 after the United States Supreme Court issued its decision in Padilla v.
Kentucky (2010) 559 U.S. 356 (Padilla). After that case, the Office of the Public
Defender began training its attorneys regarding the immigration consequences relating to
the charged crimes.
For example, after Padilla, supra, 559 U.S. 356, the Office of the Public Defender
would instruct its attorneys that a defendant who has a permanent record should plead not
guilty at the initial arraignment so the attorney can investigate the immigration
consequences and then try to obtain a more favorable disposition (relating to immigration
if applicable). Additionally, Guerrero confirmed that in 2000, the Office of the Public
Defender had no specific policy with respect to how immigration consequences should be
investigated or handled. At that time, the custom was for an attorney to advise a
defendant consistent with the language on the change of plea form. Guerrero explained it
was his practice to review the change of plea form with a defendant and make sure the
defendant understood each section before initialing and signing the form.
Also, Guerrero testified that he had no reason to believe that Gonzalez was told
anything regarding the immigration consequences of pleading guilty beyond what was
6 contained in the change of plea form. Guerrero noted that Gonzalez's pretrial services
form indicated that an immigration hold existed. Guerrero explained that the
immigration hold would have alerted him to the fact that Gonzalez was not a citizen, and
thus, he would have advised Gonzalez about the immigration consequences as set forth in
the change of plea form. Guerrero stated that he would tell a group of defendants that an
immigration hold indicates that a defendant could be deported if he or she pled guilty.
Then, on an individual basis, Guerrero would have informed Gonzalez that he would be
deported if he pled guilty.
Guerrero stated that he did not believe Gonzalez had much of a defense because he
confessed. As such, Guerrero considered the offer from the prosecutor was the best one
Gonzalez would receive.
Leticia, Gonzalez's wife, also testified at the hearing on Gonzalez's motion to
vacate. Gonzalez explained that at the time of Gonzalez's arrest, they had twins, who
were suffering from a variety of ailments and needed frequent medical attention. The
income Gonzalez was earning at the time was essential to the well-being of his family
because Leticia was not working.
Leticia stated that she attempted multiple times since Gonzalez was arrested to
secure legal assistance to help with immigration issues. However, no attorney would
help. To the extent an attorney responded to Leticia's request for representation, the
attorney would inform Leticia there was nothing to be done for Gonzalez. Only after
7 Gonzalez was deported in April 2017 did an attorney tell Leticia there was a chance she
could fight Gonzalez's deportation.
Leticia testified that she would have supported a longer custody period in 2000 if
it allowed Gonzalez an opportunity to stay in the United States legally.
Leticia admitted that, in 2002, Gonzalez was convicted of possession of
methamphetamine for sale, criminal threats, and domestic violence. He then was
deported shortly after his conviction.3
The parties stipulated that, if called to testify, Gonzalez would state that he would
not have pled guilty in this case had he known he was pleading to an aggravated felony
guaranteeing his deportation to Mexico with no avenue for relief.
After hearing the witnesses' respective testimony, the court permitted counsel to
argue the matter. In addition to emphasizing Gonzalez's family situation, Gonzalez's
counsel stated that Gonzalez did not appreciate or understand the consequences of
pleading guilty. He pointed out that Gonzalez was told he would be deported, but he was
not informed that he would be permanently barred from reentering the United States and
would never be able to become a citizen. Counsel argued that it was reasonably probable
that, if Gonzalez understood the immigration consequences of pleading guilty, he would
not have done so. Gonzalez's counsel also maintained that in representing Gonzalez,
3 Gonzalez was deported on or about June 26, 2002.
8 Guerrero had the obligation to try to secure a better immigration consequence for
Gonzalez.
The prosecutor argued that Gonzalez was properly informed of the immigration
consequences of his guilty plea. She also asserted that Gonzalez had not satisfied the
evidentiary requirements under section 1473.7.
The court denied the motion. In doing so, the court stated that it found Guerrero's
testimony "more than credible." The court determined that Guerrero informed Gonzalez
on at least two occasions, once in a group setting and another individually, that he would
be deported. The court also noted that the change of plea form expressed that a plea of
guilty would " 'result in removal, deportation or exclusion from admission to this country,
and a denial of naturalization.' " The court found Gonzalez understood that if he pled
guilty, then he would be deported. In addition, the court determined that count 2, which
the prosecution dismissed under the plea agreement, carried a four-year sentence and was
a factor defense counsel would have considered in negotiating a plea agreement.
DISCUSSION
Section 1473.7, subdivision (c) provides: "A person no longer imprisoned or
restrained may prosecute a motion to vacate a conviction or sentence" for one of two
reasons, including that "[t]he conviction or sentence is legally invalid due to a 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
9 guilty or nolo contendere." (§ 1473.7, subd. (a)(1).) The motion must be made with
"reasonable diligence" after the party receives notice of pending immigration proceedings
or a removal order. (§ 1473.7, subd. (b).) The court must hold a hearing on the motion,
and if the moving party establishes by a preponderance of the evidence that he or she is
entitled to relief, the court must allow the person to withdraw his or her plea. (§ 1473.7,
subd. (e).)4
4 In full, section 1473.7, states: "(a) A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence for either of the following reasons: [¶] (1) The conviction or sentence is legally invalid due to a 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. [¶] (2) Newly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice. [¶] (b) A motion pursuant to paragraph (1) of subdivision (a) shall be filed with reasonable diligence after the later of the following: [¶] (1) The date the moving party receives a notice to appear in immigration court or other notice from immigration authorities that asserts the conviction or sentence as a basis for removal. [¶] (2) The date a removal order against the moving party, based on the existence of the conviction or sentence, becomes final. [¶] (c) A motion pursuant to paragraph (2) of subdivision (a) shall be filed without undue delay from the date the moving party discovered, or could have discovered with the exercise of due diligence, the evidence that provides a basis for relief under this section. [¶] (d) All motions shall be entitled to a hearing. At the request of the moving party, the court may hold the hearing without the personal presence of the moving party if counsel for the moving party is present and the court finds good cause as to why the moving party cannot be present. [¶] (e) When ruling on the motion: [¶] (1) The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subdivision (a). [¶] (2) In granting or denying the motion, the court shall specify the basis for its conclusion. [¶] (3) If the court grants the motion to vacate a conviction or sentence obtained through a plea of guilty or nolo contendere, the court shall allow the moving party to withdraw the plea. [¶] (f) An order granting or denying the motion is appealable under subdivision (b) of Section 1237 as an order after judgment affecting the substantial rights of a party."
10 Here, Gonzalez appeals the denial of his section 1473.7 motion. As a threshold
matter, the parties disagree regarding the applicable standard of review. Gonzalez urges
us to follow People v. Ogunmowo (2018) 23 Cal.App.5th 67 (Ogunmowo) and apply a de
novo review, including making independent findings of fact. The People contend
Ogunmowo was wrongly decided and assert an abuse of discretion is the proper standard.
In Ogunmowo, the court held "[d]e novo review is the appropriate standard for a
mixed question of fact and law that implicates a defendant's constitutional right."
(Ogunmowo, supra, 23 Cal.App.5th at p. 76.) Such a pronouncement is not controversial.
(See People v. Cromer (2001) 24 Cal.4th 889, 894 [courts use independent, de novo
review for mixed questions of fact and law that implicate constitutional rights].)
However, the court in Ogunmowo implicitly suggested that an appellate court, on direct
appeal, can make independent findings of fact, especially when the trial court makes
factual findings based on declarations. (Ogunmowo, supra, at p. 79 [concluding the trial
court's factual determination was not entitled to deference because it was based on
statements made in declarations]; ibid. ["The trial court and this court are in the same
position in interpreting written declarations."].) The court based this conclusion on In re
Resendiz (2001) 25 Cal.4th 230 (Resendiz). Yet, that case did not involve a direct appeal,
but was an original proceeding (petition for writ of habeas corpus). Our high court noted
that where the superior court denied habeas corpus relief after an evidentiary hearing and
a new habeas petition was filed with the Court of Appeal, the appellate court is not bound
11 by the factual determinations made below, but independently evaluates the evidence and
makes its own factual determinations. (Id. at p. 249.) Nevertheless, even in the context
of a habeas petition, the court observed that factual determinations made below " 'are
entitled to great weight . . . when supported by the record, particularly with respect to
questions of or depending upon the credibility of witnesses the [superior court] heard and
observed.' " (Ibid.)
Here, we are not faced with a petition for writ of habeas corpus. Thus, we do not
find Resendiz, supra, 25 Cal.4th 230 helpful in establishing the appropriate standard of
review. Further, to the extent that the court in Ogunmowo, supra, 23 Cal.App.5th 67
relied on Resendiz to conclude that it could make independent factual findings on a direct
appeal, we do not find the court's reasoning persuasive. And Gonzalez does not cite to
any other case where a court determined that an appellate court should make independent
factual findings when addressing an appeal from an order denying a change of plea.
A decision to deny a motion to withdraw a guilty plea rests in the sound discretion
of the court. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254.) However, we are
mindful that such a motion based on a claim of ineffective assistance of counsel
implicates a constitutional right. This is not unique to motions to withdraw guilty pleas.
For example, an appellate court reviews a trial court's denial of a motion for new trial for
an abuse of discretion. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151.) Yet, in
cases in which a trial court denies a motion for new trial raising ineffective assistance of
12 counsel claims, we uphold the trial court's factual findings if they are supported by
substantial evidence and we exercise our independent judgment on the legal issues. (See,
e.g., People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.) These "differing" standards
of review are easily reconciled. A trial court may be found to have abused its discretion
on the issue of ineffective assistance of counsel if its factual findings are not supported by
substantial evidence or if it misinterprets or misapplies the applicable legal standard.
This is the standard we shall apply here.
A defendant who seeks to vacate a conviction on a claim of ineffective assistance
of counsel must establish two things: (1) counsel's performance was deficient in that it
fell below an objective standard of reasonableness and (2) he or she was prejudiced by
that deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688
(Strickland).) Section 1473.7, under which this action was brought, seemingly codifies
this requirement by placing the burden on the defendant to establish cause for relief by a
preponderance of the evidence. (§ 1473.7, subd. (e).) Although existing case law does
not use the phrase "preponderance of the evidence" in its formulation of the test for
ineffective assistance of counsel, section 1473.7's requirements essentially track the
showings that were required prior to the enactment of section 1473.7. (See In re Cordero
(1988) 46 Cal.3d 161, 180.)
Here, Gonzalez maintains if Guerrero advised him consistent with the change of
plea form, Guerrero's advice would have been "constitutionally deficient." To this point,
13 he relies on a pair of federal cases: Padilla, supra, 559 U.S. 356 and United States v.
Rodriguez-Vega (9th Cir. 2015) 797 F.3d 781 (Rodriguez-Vega). Neither case supports
Gonzalez's position here.
In Padilla, supra, 559 U.S. 356, the United States Supreme Court addressed what
constitutes deficient performance under the Strickland test with respect to advising a
defendant on the deportation consequences of pleading guilty. In that case, the
defendant, a lawful permanent resident, pled guilty to drug charges involving the
transportation of a large amount of marijuana in his tractor trailer. The court noted the
defendant's "crime, like virtually every drug offense except for only the most
insignificant marijuana offenses, is a deportable offense under 8 U.S.C.
§ 1227(a)(2)(B)(i)." (Padilla, supra, at p. 359, fn. 1.) However, before he pled guilty,
the defendant's counsel did not advise him of the immigration consequences of his plea,
and in fact, told him he " ' "did not have to worry about immigration status because he
had been in the country so long." ' " (Id. at p. 359.) The court explained:
"In the instant case, the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla's conviction. [Citation.] . . . Padilla's counsel could have easily determined that his plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses. Instead, Padilla's counsel provided him false assurance that his conviction would not result in his removal from this country. This is not a hard case in which to find deficiency: The consequences of Padilla's plea could easily be determined from reading the removal statute, his
14 deportation was presumptively mandatory, and his counsel's advice was incorrect." (Id. at pp. 368-369.)
The court determined that to provide effective assistance of counsel, "counsel must
inform her client whether his plea carries a risk of deportation." (Padilla, supra,
559 U.S. at p. 374.)
In Rodriguez-Vega, supra, 797 F.3d 781, the Ninth Circuit, following Padilla,
concluded where a defendant's conviction of a removable offense renders deportation
"practically inevitable," counsel is required to advise his or her client that the "conviction
rendered [his or her] removal virtually certain, or words to that effect," advising of a
possibility is not sufficient. (Id. at pp. 786-787, 790.) In other words, "where the law is
'succinct, clear, and explicit' that the conviction renders removal virtually certain, counsel
must advise his client that removal is a virtual certainty." (Id. at p. 786, quoting Padilla,
supra, 559 U.S. at pp. 368-369.)
The instant matter is not analogous to Padilla, supra, 559 U.S. 356 or Rodriguez-
Vega, supra, 797 F.3d 781. Unlike Padilla, Guerrero did not advise Gonzalez that he did
not have to worry about the immigration consequences of pleading guilty. Nor did
Guerrero run afoul of Rodriquez-Vega. Below, the superior court found that Guerrero
told Gonzalez twice that he would be deported if he pled guilty. Substantial evidence
supports this finding.
In addition to finding Padilla, supra, 559 U.S. 356 and Rodriguez-Vega, supra,
797 F.3d 781 factually distinguishable from the instant matter, we also conclude they are
15 not instructive here because Gonzalez pled guilty almost 10 years before the opinion in
Padilla was issued. Before Padilla, the immigration ramifications of guilty or no contest
pleas were generally considered indirect or " 'collateral' " consequences of those pleas,
about which a defendant need not be advised. (People v. Superior Court (Zamudio)
(2000) 23 Cal.4th 183, 198; People v. Limones (1991) 233 Cal.App.3d 338, 344.)
Therefore, failure to advise a defendant about those ramifications could not support a
claim of ineffective assistance of counsel under the first prong of the Strickland analysis
because such a failure did not fall below a general standard of reasonableness.
Padilla, supra, 559 U.S. 356 changed this as explained in Chaidez v. United States
(2013) 568 U.S. 342 (Chaidez). In that case, the United States Supreme Court explained
that Padilla had had the effect of suddenly changing the nature of immigration issues
from being "collateral consequences" of pleas to something unique, roughly akin to direct
consequences. (Chaidez, supra, at p. 349.) The United States Supreme Court concluded
that Padilla had created a new affirmative obligation on trial counsel to understand and
accurately explain the immigration consequences of a plea to a defendant before the entry
of that plea where no such duty had existed before. This rule was not based on prevailing
professional standards but, rather, on a determination that immigration consequences
were potentially so profound that trial counsel had an obligation to accurately advise their
clients about them. (Chaidez, supra, at p. 353.) Therefore, the court in Chaidez held
that, under the rules set out in Teague v. Lane (1989) 489 U.S. 288, the Padilla opinion
16 could not be applied retroactively to cases that were final at the time the opinion in
Padilla was issued. (Chaidez, supra, at pp. 344, 358.)
As such, Guerrero had no affirmative obligation, under Padilla, supra, 559
U.S. 356, to advise Gonzalez of the immigration consequences of his plea at the time that
plea was taken. That said, Guerrero did advise Gonzalez that he would be deported if he
pled guilty. However, Gonzalez insists that was insufficient because: (1) Guerrero had
the obligation to advise Gonzalez that a guilty plea also would result in his exclusion
from the United States and the denial of naturalization; and (2) Guerrero had the
obligation to negotiate a more immigration favorable plea. Gonzalez nevertheless does
not provide any authority that required Guerrero, in August 2000, to provide this type of
advice or negotiate this kind of plea. As such, Guerrero's representation of Gonzalez did
not fall below the then-contemporary reasonable objective standard of practice. Thus,
Gonzalez has failed to satisfy the first prong of the Strickland test and his claim of
ineffective assistance of counsel must fail.
Perhaps in recognition that Padilla, supra, 559 U.S. 356 does not apply
retroactively to his case, Gonzalez also argues that California imposed an independent
pre-Padilla duty on trial counsel to inform their clients of the immigration consequences
of their pleas. This argument is unavailing.
Gonzalez's reliance on recently enacted sections 1016.2 and 1016.3, which were
intended to codify both the Padilla requirements and any existing California decisional
17 law, is misplaced. These provisions cannot apply to the instant matter for two reasons.
First, these statutes, which were added in 2015 by Assembly Bill No. 1343 (2015-2016
Reg. Sess.), were, by their terms, enacted to codify the Padilla ruling (§ 1016.2,
subd. (h)). This would include the restriction on retroactivity, which occurred in 2013 in
Chaidez, supra, 568 U.S.342, under the familiar rule that the Legislature is presumed to
be aware of decisional law and to have enacted statutes considering that decisional law.
(People v. Giordano (2007) 42 Cal.4th 644, 659.)
Second, section 3 creates a strong presumption that changes to the Penal Code are
to be applied prospectively only, unless it is " 'very clear' " from either the language of
the statute or extrinsic sources that the Legislature intended retroactive application.
(People v. Brown (2012) 54 Cal.4th 314, 324.) Sections 1016.2 and 1016.3 contain no
such statement of legislative intent and, given section 1016.2's repeated references to the
Padilla decision (559 U.S. 356), it is clear that the Legislature did not intend that sections
1016.2 and 1016.3 apply retroactively. Moreover, we find it telling that, although
Gonzalez cites to sections 1016.2 and 1016.3 as support for his position here, he offers no
argument that those statutes should be applied retroactively.
Similarly, we conclude Gonzalez's reliance on People v. Soriano (1987) 194
Cal.App.3d 1470, People v. Barocio (1989) 216 Cal.App.3d 99 (Barocio), and People v.
Bautista (2004) 115 Cal.App.4th 229 (Bautista) is misplaced. In Soriano, the defendant
claimed that he asked his attorney if he would be deported if he pled guilty. The attorney
18 responded in the negative. Subsequently, the defendant asked his attorney whether a
guilty plea would prohibit him from obtaining citizenship. The attorney responded that it
would not and reiterated that he would not be deported. (Soriano, supra, at p. 1478.)
The defendant's attorney asserted that she told her client that he " 'could' " be deported if
he pled guilty. (Id. at p. 1479.) The court concluded the attorney's advice was erroneous
and counsel had undertaken no effort to obtain accurate information, despite being asked
about the immigration consequences of a guilty plea. (Id. at p. 1482.) The court
determined that this erroneous advice constituted ineffective assistance of counsel
because, when asked, trial counsel had an obligation to research further and provide
accurate information. (Ibid.) However, Soriano did not establish that defense counsel
had a duty to research and advise the defendant of his immigration consequences.
Instead, it stands for the proposition that when asked by a client about the immigration
consequences of a plea, the attorney has an obligation to obtain correct information and
advise the client based on that information. Here, there is no indication in the record that
Gonzalez asked his counsel repeatedly, let alone once, about the immigration
consequences of a guilty plea.
Barocio, supra, 216 Cal.App.3d 99, similarly did not create an independent pre-
Padilla duty to advise defendants of immigration consequences of their pleas. In that
case, the defendant's trial attorney failed to seek a judicial recommendation against
deportation. (Barocio, supra, at p. 103.) There was no issue about counsel's advice to
19 the defendant. Indeed, the court in Barocio specifically concluded that while section
1016.5 imposed a duty on the court to warn of the possible immigration consequences of
a plea, counsel had no corresponding duty because immigration concerns were "collateral
consequence[s]" of the plea. (Barocio, supra, at pp. 107-108.) The only deficiency
found in Barocio was trial counsel's failure to advise the defendant of the right to a
recommendation against deportation. (Id. at pp. 109-110.) The case was remanded to the
trial court for resentencing to allow counsel to confer with his client regarding requesting
a judicial recommendation against deportation and carry out the client's wishes. (Id. at
p. 111.) Gonzalez makes no similar complaint here.
Finally, we conclude that Bautista, supra, 115 Cal.App.4th 229 is not helpful to
Gonzalez. The evidence in Bautista showed that the defense attorney's strategy was
simply to bargain for "the most lenient sentence possible." (Id. at p. 238.) However, an
immigration attorney provided a declaration as an expert witness that in at least five cases
in which he was personally involved, the prosecutor agreed to allow a defendant charged
with drug sales to " 'plead upward,' " defined as pursuing a negotiated plea for a violation
of a greater offense that would carry a longer prison sentence but not result in
deportation. (Ibid.) The defense attorney never contemplated such a strategy. (Ibid.)
And the expert witnesses opined that the defense attorney's representation of the
defendant fell below objective standards of reasonableness. (Id. at pp. 239-240.) The
appellate court issued an order to show cause to the trial court for a reference hearing to
20 take evidence and resolve factual issues relating to defense counsel's legal advice at the
time of the defendant's guilty plea. (Id. at p. 242.) In contrast, Gonzalez has presented
no evidence that a more immigration favorable disposition was available in his case. Nor
did he offer an expert opinion that Guerrero's representation of him fell below an
objective standard of reasonableness at the time Gonzalez pled guilty. Moreover, there is
no suggestion in Bautista that trial counsel had a pre-Padilla duty to research and explain
immigration consequences to their clients.
In summary, this case highlights the difficulties of a motion under section 1473.7
challenging a guilty plea that was made almost 20 years earlier. Gonzalez's declaration
contains little helpful information as he does not recall what advice he received. He does
not claim that he asked his attorney about the immigration consequences of his plea. He
does not assert that his attorney provided him incorrect advice about the immigration
consequences of his plea. Gonzalez does not offer any evidence that a more immigration
favorable plea was available to him in August 2000. There is no indication that Gonzalez
asked his attorney to obtain such a plea. Although Gonzalez's attorney, Guerrero, does
not have any independent recollection regarding representing Gonzalez, Guerrero
testified to what his practices were in August 2000 and what he was likely to have done.
According to Guerrero, he would have advised Gonzalez at least twice that he would be
deported if he pled guilty. The superior court found Guerrero very credible. Gonzalez
offers no evidence to contradict Guerrero's testimony. On the record before us, Gonzalez
21 has not carried his burden of establishing the first prong of the Strickland test, and thus,
he has not shown by a preponderance of the evidence that he is entitled to relief under
section 1473.7. (§ 1473.7, subd. (e).)
DISPOSITION
The order is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.