Filed 11/26/24 P. v. Lopez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081569
v. (Super. Ct. No. FWV1101402)
MARIA LOPEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West,
Judge. Affirmed.
Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski, and Laura
Baggett, Deputy Attorneys General, for Plaintiff and Respondent.
1 I.
INTRODUCTION
Defendant and appellant Maria Lopez is a citizen of Mexico who has been living
in the United States for over 45 years. In 2013, she pled no contest to attempted second 1 degree murder (Pen. Code, §§ 664/187, subd. (a)), and admitted the personal use of a
firearm (§ 12022.5, subd. (a)) allegation. In exchange for her plea, the remaining
allegations were dismissed, and defendant was sentenced to a stipulated term of 13 years
in state prison.
In 2022, as she was facing deportation proceedings, defendant filed a motion to
withdraw her plea and vacate her conviction pursuant to section 1473.7 on the grounds
that her conviction was legally invalid and not knowingly and intelligently made because
her trial counsel failed to advise her about the immigration consequences of her guilty
plea, she did not meaningfully understand the adverse immigration consequences of her
plea, and she was prejudiced. The trial court denied the motion.
Defendant appeals, contending her plea counsel provided ineffective assistance of
counsel. Specifically, she faults her counsel for failing to advise her of the specific
immigration consequences of her plea. She also argues that she did not have a
meaningful understanding of the immigration consequences of her plea and that the errors
prejudicially effected the outcome. We find no error and affirm the order.
1 All future statutory references are to the Penal Code unless otherwise stated.
2 II. 2 FACTUAL AND PROCEDURAL BACKGROUND
The victim and defendant were married but were separated at the time of the
offense. They shared a six-year-old daughter. The victim reported their relationship
“was extremely volatile,” and that defendant had threatened to kill him in 2009.
On May 23, 2011, as the victim pulled up to his home in his vehicle, he noticed a
figure wearing a black hooded sweatshirt and a ski mask pointing a gun at him from
outside the vehicle. The victim observed the person pull the trigger several times, but the
gun never fired. Panicked, the victim opened his car door, hit the assailant with his car,
and ran for help to a nearby residence. When the victim turned around, he saw the
assailant flee the scene.
The victim believed defendant was involved and notified law enforcement. Prior
to the incident, a witness saw a female parked near her home acting suspiciously while
she sat in a vehicle with a company insignia on the doors. The witness later identified
defendant in an infield lineup as the person parked near her home right before the attempt
on the victim’s life.
Officers subsequently contacted defendant and searched her company vehicle,
which she had taken rather than her personal vehicle. A search of defendant’s company
2 A summary of the factual background is taken from the probation officer’s report.
3 car revealed a gun, taser, ski mask, black or blue beanie, folding knife, disposable vinyl
gloves, black duct tape, ammunition, black gloves, and lighter fluid.
Officers also located a man who stated defendant had offered him $800 to “‘f—k
up’” the victim. The cohort stated that, on an occasion prior to May 23, he arrived at the
victim’s home with a knife with the intent to surprise the victim and attack him.
However, the victim was already inside the home at the time, and the plan was aborted.
Defendant denied any involvement in the incident but described how the victim had made
her life “full of problems” after she demanded child support. Defendant also reported
that there was a current case where her teenage daughter had accused the victim of
molesting her and that the case was still pending.
On January 13, 2012, the San Bernardino County District Attorney filed an
amended information charging defendant with premeditated and deliberate attempted
murder (§§ 664/187 subd. (a); count 1), assault with a firearm (§ 245, subd. (a)(2); count
2), and two counts of conspiracy to commit a crime (§ 182, subd. (a)(1); counts 3 & 4).
The amended information further alleged that defendant personally used a firearm in the
commission of count the attempted murder (§ 12022.53, subd. (b)).
On August 2, 2013, defendant pled no contest to attempted second degree murder
and admitted that she had personally used a firearm. In return, the remaining allegations
were dismissed, and defendant was sentenced to a stipulated term of 13 years in prison.
4 On June 7, 2022, this court reversed the trial court’s denial of defendant’s section 3 1203.4b petition, and remanded the matter for the trial court to exercise its discretion.
(People v. Lopez (June 7, 2022, E077749) [nonpub. opn.] (Lopez I).)
On July 22, 2022, following the remittitur in Lopez I, the trial court granted
defendant’s section 1203.4b petition, terminated her sentence, and set aside her
conviction.
On November 3, 2022, as she was facing deportation proceedings, defendant filed
a motion to withdraw her plea pursuant to section 1473.7 on the grounds that her
conviction was legally invalid and not knowingly and intelligently made because her plea
counsel did not advise her or investigate the immigration consequences of her plea and
failed to negotiate a plea bargain with no adverse immigration consequences. Defendant
alleged she did not understand the immigration consequences of her plea because (1) she
was not advised of such consequences, and (2) even if she had been advised, she would
not have understood these consequences based on years of abuse she suffered at the
hands of the victim (her ex-husband) and her ex-husband’s abuse of her daughter. She
also argued that she was prejudiced by her counsel’s failure to advise her of the
immigration consequences of her plea. She claimed that even if the court did not find her
3 Under Assembly Bill No. 2147, defendants may petition the court to expunge their conviction. Section 1203.4b gives trial courts the discretion to grant such relief to certain defendants, such as defendant, who have successfully participated in the California Conservation Camp Program (fire camp).
5 former counsel rendered ineffective assistance, she did not meaningfully understand the
potential immigration consequences of her plea.
In support of her motion, defendant attached her declaration in which she detailed
her ties to the United States: she arrived in this country when she was four years old, both
of her daughters are United States citizens, her two grandchildren are citizens as well, and
she was currently married to a United States citizen. In this same declaration, defendant
claimed she had been a victim of abuse since she was a child, and her older daughter had
been molested by her ex-husband—the victim in this case. Defendant claimed she
became distraught when she discovered that their daughter was in the custody of her ex-
husband just days before her plea. Prior to her plea, she had been in custody for two
years and was represented by retained counsel. During those two years, however,
defendant claimed her retained counsel never discussed or mentioned immigration
consequences of a possible plea. At the time of her plea, defendant was represented by
new appointed counsel. Defendant declared that new counsel never discussed with her
the immigration consequences of her plea, or the possibility of an immigration-safe
resolution. Given her ties to the United States, defendant asserted that she would have
never pled in this case had she known it would result in deportation from this country.
Following the expungement of her conviction pursuant to section 1203.4b, defendant
stated that she had been placed in removal proceedings.
On February 9, 2023, the People filed an opposition to the motion. The People
responded that defendant’s motion should be denied because counsel provided effective
6 assistance and advised defendant of the immigration consequences of her plea. In
addition, considering defendant had been charged with attempted murder, there was no
“immigration safe” plea. Thus, defendant failed to show prejudicial error because there
was no possibility of a plea that would not result in defendant’s deportation.
Defendant thereafter replied to the People’s opposition, arguing she did not
meaningfully understand the immigration consequences of her plea and that she had
established prejudicial error. Defendant also argued that her declaration was sufficient to
show prejudice, her counsel did not inform her she would be deported if she pled guilty,
and the immigrations advisements by the trial court and the plea form do not satisfy the
advisement requirement.
On April 28, 2023, the trial court held a hearing on the section 1473.7 motion. At
that time, defendant and her plea counsel testified. Defendant testified that she obtained a
green card in 2007 and was a legal permanent resident of the United States. Her first
retained counsel, who had represented her for two years, never discussed any
immigration consequences that could result from her plea. She obtained new counsel,
Attorney Gary Ablard, who was appointed to represent her, in January 2013. In August
2013, defendant changed her plea to no contest. During the eight months that Ablard
represented her, defendant testified that he never spoke to her about the immigration
consequences of her plea, and never advised her that she could be deported because of
her plea. From the time she was charged in this case to her plea, defendant never
7 consulted an immigration attorney. Defendant testified that at the time she pled guilty,
“[i]t was highly important” for her to be reunited with her family as soon as possible.
Defendant acknowledged that she read, initialed, and signed her plea form. She is
a fluent English speaker, and can read and write in English. She does not need the aid of
a Spanish language interpreter. Defendant claimed that although she initialed the box
next to the paragraph which stated, “‘I understand that if I am not a citizen of the United
States, deportation, exclusion from admission to [the] United States, or denial of
naturalization will result from a conviction of offenses to which I plead guilty or no
contest,’” she never read that paragraph, and her attorney never went over that section
with her. She claimed that no one went over the plea form with her, including Ablard.
She admitted that the court asked her if she went over the plea form with her attorney and
she answered, “‘[y]es.’” Defendant also initially claimed that she did not remember the
court admonishing her that, if she was not a United States citizen, she could be deported.
She believed her possession of a green card gave her “residency” and that being a citizen
did not matter. She subsequently admitted that the court stated that if she was not a
citizen, she could be deported. She claimed that she was not “considering anything but
being away from [her] children” and that she “didn’t consider anything but getting home
to [her] children.” She stated that she first realized there was an immigration issue one
week before her release, as she was notified that immigration had placed her on a hold.
She again claimed she signed the plea deal to return to her family as fast as she could,
considering she had spent two years, eight months in custody, and she never would have
8 agreed to the terms if she knew she was going to be separated from her family.
Defendant explained that had she understood she would be deported, she would have
fought her case and not signed the plea agreement.
Ablard, defendant’s counsel at the time of her plea, testified that he had been a
practicing attorney since 1979, and predominately a criminal defense lawyer since the
mid-1980’s. Ablard recalled representing defendant, but did not have an independent
recollection of her case. Ablard described his standard practice when it came to
immigration consequences of a plea. His standard practice included first, a determination
of the client’s citizenship status, and second, if the client was not a United States citizen,
Ablard would ask the prosecution to keep any plea offers open, continue the matter to
assess the best path forward, and have the client consult an immigration attorney. Ablard
was aware that a resident with a green card is not a citizen, and thus he would have asked
for more time to consider the options. In a case such as defendant’s where attempted
murder was charged, Ablard knew there was no immigration-safe plea possible, and
therefore, he would have advised the client that he or she would be deported. Ablard
would advise the client about the immigration consequences before the hearing on the
plea, or at the time of the hearing. Ablard also testified that he reviews the following
portions of the plea form with this clients: (1) the declaration on the plea form; (2) the
handwritten and preprinted portions; and (3) the paragraph containing the immigration
warning. Ablard had no reason to believe he did not advise defendant of the immigration
consequences in her case.
9 On cross-examination, Ablard admitted that he represented defendant on a
subsequent petition pursuant to section 1203.4, but he did not recall his representation for
the attempted murder charge. Ablard also testified that he was unaware that defendant
was not a United States citizen until recently, because he had no prior recollection of the
case. In his experience, Ablard explained that there were occasions where a client had an
immigration status that would adversely affect him or her, but the client does not disclose
it to him. Ablard had no independent way to check the immigration status of his clients.
Defense counsel argued that defendant did not meaningfully understand the
immigration consequences of her plea, and that resulted in prejudice. Counsel asserted
that a trial court’s advisal on the record during the plea is insufficient to place a defendant
on notice of immigration consequences of his or her plea. Counsel noted that defendant
had never been involved in the criminal justice system before this case, and she testified
that she never received an immigration advisement from her attorney. Counsel explained
that defendant believed she was in the country lawfully, and therefore, she did not
understand that her attempted murder conviction would have an immigration
consequence of deportation. Counsel further argued that Ablard’s practice of advising
his clients who are not United States citizens to consult an immigration attorney was
insufficient for defendant to understand she could be deported as a result of her plea.
Considering her family ties in the United States, counsel argued that defendant would not
have accepted the plea bargain had she known she would be deported.
10 The People responded that defendant lacked credibility since at the time of plea,
she informed the court she had read and understood the plea form, yet at the current
hearing, she testified she did not read the plea form and had no idea what she was
signing. The People argued that defendant either lied when she entered her plea, or lied
to the court during the section 1473.7 hearing. The People further observed that
defendant is a fluent English speaker. And, while defendant claimed to have only spoken
to her attorney once, the People observed that the minute orders indicated Ablard
appeared on defendant’s matter eight separate times. The People added that defendant
did not care about the immigration consequences of her plea because she never consulted
an immigration attorney in the two years and three months she was in custody leading up
to her plea. The People further noted it was not possible to negotiate an “immigration-
safe plea” on a premeditated attempted murder charge, and summarized the evidence,
describing the case against defendant as strong. The trial court took the matter under
submission and continued the matter.
On May 19, 2023, the trial court requested defense counsel provide documentation
that showed removal proceedings were pending.
On June 5, 2023, via a written order, the trial court denied defendant’s motion.
The court found defendant had not proven prejudicial error for multiple reasons. First,
the court found defendant had not shown there had been attorney error, finding Ablard to
be credible in his testimony that he correctly advised defendant that she would be
deported. The court noted that defendant had neither offered a declaration from her first
11 attorney nor state her first attorney was unavailable to testify. The court relied on the
transcript of the plea colloquy, which indicates Ablard spoke with defendant about her
case, that he went over the plea form with defendant, and that defendant understood
everything on the plea form. The court also pointed out that at the time defendant pled
guilty, the trial court had advised defendant she may be deported as an immigration
consequence of her plea in open court and defendant had stated that she understood
everything on the plea form. The court found defendant had failed to show by a
preponderance of evidence that she was not advised of the adverse immigration
consequences she faced as a result of her plea. The court found defendant to be credible
“when she testified that all she cared about when she pled was returning to her children as
quickly as possible.”
The court also concluded defendant was not too distraught to understand the
adverse immigration advisements because she failed to offer objective supporting
evidence of her emotional state and inability to understand any aspect of her plea.
Moreover, the court noted that defendant’s unsubstantiated claim was contradicted by the
record. Defendant had initialed and signed her plea form in the appropriate places, and
she seemed under no distress during her colloquy with the court at the change of plea
hearing. The court pointed out that defendant had answered in the negative to the plea
court’s query of whether she was “‘under the influence of alcohol or drugs, or anything
that would interfere with [her] ability to understand what [she was] doing.’” Defendant
also replied in the negative to the court’s question of whether anyone had threatened her
12 or used any violence against her to force her to change her plea. In addition, defendant
stated “yes,” in response to the court’s question of whether she understood all the
penalties and punishments for her crime, any potential defenses she may have had to the
charges and the future consequences of her plea. Defendant also replied “yes” to the
court’s questions of whether she had enough time to talk with Ablard and whether she
was satisfied with the advice he had given her. The court explained, “When [defendant]
was asked if she was under the influence of anything that would interfere with her ability
to understand what was happening in her case that was a perfect opportunity for her to
inform the court she was too distressed to enter the plea, but she did not.” The court
further noted that defendant’s “emotional state did not cause the court to pause, or
continue the matter,” rather the court found defendant read and understood the plea form,
that defendant understood the future consequences of her plea, and that defendant
knowingly, intelligently, and voluntarily entered her plea. The court concluded defendant
“failed to show she was prejudice because she was too distraught to understand the
adverse immigration consequences of her plea.”
In addition, the court found that defendant did not objectively prove she
mistakenly believed because she had lawful permanent resident status the immigration
consequences did not apply to her. The court noted that defendant was a fluent English
speaker and appeared to have no issue understanding or communicating in English. The
court explained that defendant was 35 years old when she pled guilty, she had been in the
United States since she was four years old, had held many white-collar jobs, and had
13 purchased two houses. The court additionally noted that the plea form’s advisal and the
court’s oral advisal concerning immigration consequences did not provide for an
exception for someone with lawful permanent status. The court further concluded that
defendant would have entered a plea even if she understood the immigration
consequences, observing that although defendant claimed at the section 1473.7 hearing
that her first priority was to remain in the country, she also testified that at the time of her
plea, she was not considering anything but being away from her children and wanted to
get back to them. The court further relied on defendant’s failure to prove an
immigration-safe plea was available because any crime that carried a sentence of a year
or more is an aggravated felony, and an aggravated felony is a deportable offense. The
court noted that defendant had “failed to offer any related alternative plea she could have
entered that would have carried a sentence of less than [one] year because none existed.”
Finally, the court determined that defendant failed to prove by a preponderance of
the evidence that she would have rejected the stipulated term of 13 years in prison and
gone to trial if she had fully understood the immigration consequences. The court noted
that defendant was facing the possibility of a determinate term of 19 years, followed by a
life term in state prison. The court detailed the evidence supporting defendant’s charges
and concluded the People had a strong case against her. The court concluded, “Given the
strong evidence against [defendant], the likely conviction if she went to trial, that the plea
allowed her to avoid a likely life term with the possibility of parole after 19 years, and her
failure to discuss the risks of rejecting the plea, [defendant] failed to prove by a
14 preponderance of the evidence, that she would have rejected the plea if she had fully
understood the immigration consequences.” Defendant timely appealed.
III.
DISCUSSION
Defendant argues her motion to vacate her conviction should have been granted
because she showed (1) her plea counsel failed to properly advise her of the immigration
consequences of her plea, (2) she did not meaningfully understand the immigration
consequences of her plea, and (3) she would not have accepted the plea had she properly
understood those consequences. We conclude the court properly denied the motion.
A. Section 1473.7 Generally
Section 1473.7 authorizes a person who is no longer in criminal custody to move
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 conviction or sentence.” (§ 1473.7, subd. (a)(1) ; see People v. Vivar
(2021) 11 Cal.5th 510, 523, (Vivar); People v. Espinoza (2023) 14 Cal.5th 311, 319;
People v. Coca (2023) 96 Cal.App.5th 451, 457, 31.)
“Ineffective assistance of counsel that damages a defendant’s ability to
meaningfully understand, defend against, or knowingly accept the actual or potential
adverse immigration consequences of a guilty plea . . . is the type of error that entitles the
defendant to relief under section 1473.7.” (People v. Ogunmowo (2018) 23 Cal.App.5th
15 67, 75.) To establish ineffective assistance of counsel, a defendant must demonstrate that
counsel’s performance fell below an objective standard of reasonableness and the
defendant was prejudiced by counsel’s deficient performance. (Strickland v. Washington
(1984) 466 U.S. 668, 687-688.)
In 2019, the Legislature amended section 1473.7 to clarify that a “finding of legal
invalidity may, but need not, include a finding of ineffective assistance of counsel.”
(§ 1473.7, subd. (a)(1).) Thus, a person seeking relief pursuant to section 1473.7 need
only demonstrate prejudice that he or she would not have entered the plea had he or she
known about the immigration consequences. (People v. Camacho (2019) 32 Cal.App.5th
998, 1010-1011.)
“[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.” (Vivar, supra, 11 Cal.5th at pp. 529-530.)
A defendant seeking to withdraw his plea based on inadequate advisement of
immigration consequences must “corroborate such assertions with objective evidence.”
16 (Vivar, supra, 11 Cal.5th at p. 530, internal quotation marks omitted.) “Objective
evidence includes facts provided by declaration, contemporaneous documentation of the
defendant’s immigration concerns or interactions with counsel, and evidence of the
charges the defendant faced.” (People v. Espinoza, supra, 14 Cal.5th at p. 321.) “[N]o
specific kind of evidence is a prerequisite to relief,” but “[t]he more robust and inclusive
a record, the greater the opportunity for effective persuasion and meaningful judicial
review.” (Id. at p. 325.)
The court must grant the motion to vacate the conviction “if the moving party
establishes, by a preponderance of the evidence, the existence of any of the grounds for
relief specified in subdivision (a).” (§ 1473.7, subd. (e)(1).) In ruling on a section 1473.7
motion, the trial court must also specify the basis for its decision. (§ 1473.7, subd.
(e)(4).) An order granting or denying the motion is appealable. (§ 1473.7, subd. (f).)
B. Standard of Review
We apply an independent standard of review to rulings on section 1473.7 motions.
(Vivar, supra, 11 Cal.5th at pp. 524-528.) Under independent review, an appellate court
exercises its independent judgment to determine whether the facts satisfy the rule of law.
(Id. at p. 527.) When courts engage in independent review, they should be mindful that
independent review is not the equivalent of de novo review. An appellate court may not
simply second-guess factual findings that are based on the trial court’s own observations.
(Ibid.) Factual determinations that are based on the credibility of witnesses the trial court
heard and observed are entitled to particular deference, even though courts reviewing
17 such claims generally may reach a different conclusion from the trial court on an
independent examination of the evidence even where the evidence is conflicting. (Ibid.)
In section 1473.7 motion proceedings, appellate courts should similarly give particular
deference to factual findings based on the trial court’s personal observations of witnesses.
(Vivar, supra, at pp. 527-528.) “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; see Espinoza, supra, 14 Cal.5th at pp. 319-320; People v. Coca, supra, 96
Cal.App.5th at p. 458; People v. Curiel (2023) 92 Cal.App.5th 1160, 1173 (Curiel).)
C. Analysis
Defendant claims her counsel failed to inform her that, as a result of her plea to
attempted second degree murder, the immigration consequences were mandatory
deportation and that her counsel should have known her status as a legal permanent
resident would not exempt her from deportation. She also contends that her counsel’s
prejudicial failure to properly advise her on the consequences of pleading guilty added to
her inability to meaningfully understand the effects of her actions. Defendant claims she
was prejudiced since she would not have pled guilty if she had understood she was
subject to mandatory deportation and would be unable to return to the United States,
thereby separating her from her family, job, and country.
Defendant failed to meet her burden of establishing by a preponderance of the
evidence any prejudicial error on plea counsel’s part that damaged her ability to
understand, defend against, or knowingly accept the immigration consequences of her
18 plea. (§ 1473.7, subds. (a)(1), (e)(1).) We note the ease with which a defendant may
claim his counsel erred. (See In re Alvernaz (1992) 2 Cal.4th 924, 938.) However, “[a]n
allegation that trial counsel failed to properly advise a defendant is meaningless unless
there is objective corroborating evidence supporting appellant’s claimed failures.”
(People v. Cruz-Lopez (2018) 27 Cal.App.5th 212, 223-224.) Thus, defendant’s claims
require “corroboration and objective evidence because a declaration by defendant is
suspect by itself.” (Id. at p. 224.) “Courts should not upset a plea solely because of post
hoc assertions from a defendant about how he would have pleaded but for his [or her]
attorney’s deficiencies. Judges should instead look to contemporaneous evidence to
substantiate a defendant’s expressed preferences.” (Lee v. United States (2017) --- U.S. -
-- [137 S.Ct. 1958, 1967]; see People v. Mejia (2019) 36 Cal.App.5th 859, 872 [“[i]n a
postconviction setting, courts should not simply accept a defendant’s statement of regret
regarding the plea, courts should also ‘look to contemporaneous evidence to substantiate
a defendant’s expressed preferences.’”].)
Defendant has presented no such objective, corroborating evidence here. The only
relevant evidence she offers is her self-serving declaration and testimony concerning her 4 plea. Generally, self-serving declarations and testimonies lack trustworthiness. (People
v. Duarte (2000) 24 Cal.4th 603, 611.) In other words, we are not bound to give full
credence to the statements in defendant’s declaration and testimony because of her
4 Defendant also attached a declaration from her older daughter regarding the sexual abuse allegation against the victim. The declaration makes no reference concerning defendant’s plea of guilty.
19 obvious interest in the outcome of the proceeding. (See People v. Beck (1961) 188
Cal.App.2d 549, 553.) Moreover, the trial court found Ablard’s testimony credible and
defendant’s testimony not credible concerning the immigration advisal given by Ablard.
Furthermore, we find defendant’s statements in her declaration that she pled guilty
not knowing she would be deported not credible in light of the signed plea agreement and
the court’s own taking of her plea. Defendant initialed the box next to the statement in
the plea agreement stating: “I understand that if I am not a citizen of the United States,
deportation, exclusion from the admission to the United States, or denial of naturalization
will result from a conviction of the offense(s) to which I plead guilty/no contest.”
Defendant initialed the boxes verifying that her attorney explained everything in the
agreement to her, and she fully understood everything. She also initialed the boxes
verifying that she understood she had the right to a trial and that she had sufficient time to
consult with her attorney. The record also shows that when the court was taking her
guilty plea, it specifically told defendant that her conviction may result in deportation.
The court said, “If you are not a citizen, you are hereby advised that conviction of the
offense for which you are pleading may have the consequences of deportation, exclusion
from admission to the United States or denial of naturalization pursuant to the laws of the
United States; do you understand all of that?” Defendant responded, “Yes, sir.”
Although the court stated “may,” the court confirmed with plea counsel that he
went over the form with defendant, and defendant understood everything on it. The court
found that defendant read and understood the form, understood the charge to which she
20 was pleading and the consequences for the charge, and was freely and knowingly
entering the plea. Indeed, an examination of the entire colloquy between defendant and
the court demonstrates that defendant meaningfully understood the immigration
consequences of her plea. The plea form contradicts defendant’s declaration and
testimony that she did not understand the immigration consequences of her guilty plea.
Defendant grew up in the United States since she was four years old and attended her
local schools and colleges. She was fluent in English and did not require a translator or
interpreter at any point during the proceedings.
We recognize that generic form statements and warnings on plea forms are not
necessarily dispositive. (See People v. Patterson (2017) 2 Cal.5th 885, 895-897; People
v. Lopez (2022) 83 Cal.App.5th 698, 716.) “Even where the form says that the defendant
‘will’ be deported, it does not substitute for the advice of counsel, and it is not a
categorical bar to relief.” (People v. Manzanilla (2022) 80 Cal.App.5th 891, 906; see
also Curiel, supra, 92 Cal.App.5th at p. 1175.) But in those cases, other objective
evidence—such as attorney notes, oral testimony, or affirmative actions taken by
defendants after their convictions—substantiated the defendant’s version of events. (See
People v. Manzanilla, supra, at p. 910 [rejecting claim that a defendant’s initials and
signature on a plea form conclusively showed he subjectively understood he would be
deported and stating that this “has been rejected by numerous courts where there is
contemporaneous evidence to the contrary . . . .”].)
21 In Curiel, a case heavily relied upon by defendant, for example, the Court of
Appeal found corroborating evidence sufficient to overcome a defendant’s signed
acknowledgement that her plea would mandate deportation. (Curiel, supra, 92
Cal.App.5th at pp. 1177-1178.) There, the defendant had signed a 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 . . . .” (Id. at p. 1165.) The defendant’s
section 1473.7 motion relied heavily on her own declaration to support her claim that she
did not properly understand those immigration consequences. (Curiel, supra, at p. 1167.)
She alleged that she had relied on her defense counsel’s representations that if she
avoided jail time, she could avoid deportation. (Ibid.)
However, other objective evidence corroborated the defendant’s statements.
(Curiel, supra, 92 Cal.App.5th at pp. 1177-1178.) The trial court held an evidentiary
hearing on her petition, at which both the defendant and her original defense counsel
testified. (Id. at pp. 1168-1171, 1176-1177.) On appeal, the court found that the
testimony of the defendant’s defense counsel “corroborated the statements in Curiel’s
declaration” and confirmed that the advice she received regarding the immigration
consequences of her plea “was inadequate and incomplete.” (Id. at p. 1177)
Here, defendant put forth no comparable evidence corroborating the claims made
in her declaration. The plea form, the record in open court of defendant’s plea, and
Ablard’s testimony, which the trial court found credible, all demonstrate that she did
meaningfully understand the immigration consequences of her plea.
22 Defendant claims the court should have relied on her post-plea conduct, which
showed her desire to return to her children, to determine whether she meaningfully
understood the adverse immigration consequences. Her post-plea conduct does not aide
defendant as her desire to plead guilty was the same: to return to her children as soon as
possible. At the section 1473.7 hearing, defendant repeatedly testified that all she cared
about when she pled was returning to her children as quickly as possible. This does not
demonstrate she did not understand the adverse immigration consequences, rather it
shows her motivation for pleading guilty. Defendant was facing a determinate term of 19
years, plus an indeterminate term of life. By pleading guilty, she received 13 years,
thereby being free from custody much sooner.
Defendant also contends that she was too distraught due to the victim’s abuse of
her daughter, their daughter returning to the victim’s care before she pled guilty, and her
own abuse as a child to meaningfully understand the adverse immigration consequences.
However, this claim is belied by the record. Moreover, as the trial court found, defendant
has failed to offer objective supporting evidence of her emotional state and inability to
understand the consequences of her plea or the plea in general. Defendant was not so
distraught as to request a continuance. She was able to initial and sign the plea form in
the appropriate places. She did not appear in distress when appropriately and respectfully
responding to the court’s questions. She did not provide a family law order showing a
change in custody of her daughter. When the court inquired whether she was under the
influence of drugs or alcohol or anything that would interfere with her ability to
23 understand, defendant responded, “No. Sir.” At this time, defendant could have alerted
the court that she was too distraught to enter the plea, but she did not. Defendant has
failed to show she did not meaningfully understand the adverse immigration
consequences of her plea because she was too distraught.
Even assuming her plea counsel did err in her representation, defendant has failed
to establish that she was prejudiced. She argues that she would not have taken the plea
deal if she had known the consequence of eventually being deported because of her two
daughters, two grandchildren, her family and friends, her home, and her life in the United
States. Defendant’s declaration contains the only direct evidence presented as to whether
she would have taken the plea had she been aware of the immigration consequences.
However, “‘a defendant’s self-serving statement—after trial, conviction, and sentence—
that with competent advice he or she would have accepted [or rejected] a proffered plea
bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to
prejudice, and must be corroborated independently by objective evidence.’” (People v.
Bravo (2020) 58 Cal.App.5th 1161, 1171, overruled in part on other grounds, as stated in
Vivar, supra, 11 Cal.5th at p. 526.) We note defendant did not state in her declaration
that she told her plea counsel her priority was to remain in the United States with her
family and life, in order for her counsel to try to mitigate the consequences of the plea.
Defendant did state in her declaration that she would not have accepted the plea deal if
she knew she was going to be deported, and she “would have asked [her] attorney to
defend the case in every way possible,” “would have asked [her] attorney to attempt to
24 have the charge changed,” “would have even offered to spend time in custody,” or
“would have taken the case to trial.” First, defendant did know that she would be
deported because her counsel, the plea form, and the court expressly told her so. Second,
defendant’s statement lacks credibility. Defendant was charged with premeditated and
deliberate attempted murder (§§ 664/187 subd. (a)), assault with a firearm (§ 245, subd.
(a)(2)), and two counts of conspiracy to commit a crime (§ 182, subd. (a)(1)). It was also
alleged that defendant personally used a firearm in the commission of the attempted
murder (§ 12022.53, subd. (b)). Thus, as previously noted, she would have been facing a
maximum sentence of life. She would not have been eligible for parole for 19 years. The
evidence against her was strong. As the trial court noted, “[t]here was evidence
suggesting that over the course of 3 weeks [defendant] hired someone to physically harm
[the victim], she set [the victim] up to be arrested, hired someone to kill him and then
tried to kill [the victim] herself.” Pursuant to the plea agreement, defendant pled guilty to
attempted second degree murder and admitted the firearm allegation, in exchange for a
term of only 13 years in state prison and the dismissal of the remaining counts and
allegations.
Further, based on the charges and the strong evidence against defendant, an
immigration-safe plea was not possible. Any crime that carries a possible sentence of
one year or more is an aggravated felony. (8 U.S.C. § 1227, subd. (a)(2)(A)(iii).) All of
the crimes charged against defendant are deportable offenses because they are aggravated
felonies. As concluded by the trial court, defendant has not offered any alternative plea
25 “she could have entered that would have carried a sentence of less than [one] year
because none exist.”
“Additionally, neither in the opening brief nor in h[er] declaration does defendant
discuss how the costs of rejecting the plea—the potential sentence [s]he faced, h[er]
ability or lack thereof to make alternative arrangements for h[er] family, and so on—
would have factored into h[is] analysis. [Sh]e simply makes a conclusory claim that
[s]he would have taken the alternative route without consideration as to the opportunity
cost of doing so. Yet, to determine the reasonable probability that defendant would have
rejected a plea offer, a court would need to consider not only defendant’s ties to the
United States and h[er] family situation, but to consider them in light of the consequences
of h[er] rejecting the plea and proceeding to trial. Without evidence of the probability of
an alternate disposition, and without evidence of both the negative and positive
consequences of the plea and how the defendant would have weighed them, a defendant
cannot support a showing that it is reasonably probable that, if properly advised, [s]he
would have rejected the . . . plea offer ‘in the hope or expectation that he or she might
thereby negotiate a different bargain or, failing in that, go to trial.’” (People v. Bravo
(2021) 69 Cal.App.5th 1063, 1076-1077, quoting People v. Martinez (2013) 57 Cal.4th
555, 567.)
Moreover, given the nature of the charges and the multiple attempts to physically
harm or kill the victim, it was extremely unlikely the People would have accepted an
26 immigration-safe plea. As the trial court stated, “[a]fter all, [defendant’s codefendant]
was sentenced to [four] years in state prison for his less egregious actions.”
Under these circumstances, although it is possible, it is not likely she would have
risked going to trial, being convicted of all counts, and facing a life sentence as well as
the same immigration consequences.
We conclude that defendant failed to meet her burden of establishing by a
preponderance of the evidence that her plea counsel rendered ineffective assistance, or
that she did not understand the immigration consequences of the plea, that she would not
have taken the plea deal if she had known the adverse consequences of her plea. Because
defendant failed to meet her burden of proof, the trial court properly denied the section
1473.7 motion.
IV.
DISPOSITION
The order denying defendant’s section 1473.7 motion is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
MILLER J.