Filed 3/8/23 P. v. Piedrasanta 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E078614
v. (Super.Ct.No. FSB17004464)
LIVIN PIEDRASANTA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. William Jefferson
Powell IV, Judge. Affirmed.
U.S. Law Center and Sanjay Sobti, and Conrad A. Aragon, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, and Melissa Mandel and
Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
1 In 2018, Livin Piedrasanta pled no contest to inflicting corporal injury on a
spouse. In 2021 Piedrasanta filed a motion under Penal Code1 section 1473.7 seeking to
set aside his plea because he was not aware of its immigration consequences. The trial
court held an evidentiary hearing on the motion and denied it. On appeal, Piedrasanta
argues the court erred by concluding he was properly advised of the immigration
consequences of his plea. We affirm.
FACTS
Piedrasanta came to the United States from Guatemala in 2002 as an
undocumented immigrant. He has two children, both born in the United States. Both
children live with him. He is currently married and was married to another woman prior
to 2018. He claims he never left the United States.
In 2017, the San Bernardino County District Attorney charged Piedrasanta by
information with inflicting corporal injury on a spouse. (§ 273.5, subd. (a).) In 2018,
Piedrasanta agreed to plead no contest to an added second count of inflicting corporal
injury on a spouse. In exchange, the court dismissed the first count, and sentenced
Piedrasanta to 158 days in county jail and three years’ probation.
As part of his plea, Piedrasanta completed a change of plea form. Piedrasanta
initialed and signed an advisement on that form stating, “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 the offense(s) to which I plead
1 Unlabeled statutory citations refer to this code.
2 guilty/no contest.” (Italics added.) Both a Spanish language interpreter and defense
counsel also signed the form, averring that they read and explained the form to
Piedrasanta. When taking this change of plea, the court asked Piedrasanta whether he
had enough time to review his rights, the evidence against him, and possible defenses
with his attorney. Piedrasanta said he did. Defense counsel advised the court that
articulating a factual basis for Piedrasanta’s crime posed an immigration issue, so counsel
stipulated there was a factual basis for the plea without adopting specific facts as the
basis.
In 2021, Piedrasanta moved to vacate his conviction under section 1473.7. The
trial court held a hearing where it heard testimony from Piedrasanta and the public
defender who represented Piedrasanta in his plea. Piedrasanta testified that before his
plea several different public defenders represented him across nine court appearances.
He only met his plea counsel twice. He said everyone in court the day of his plea was in
a hurry, his counsel and the judge included. According to him, his counsel told him they
had to review and accept the offer quickly “because the Judge had to leave.” He said his
counsel never asked him for his immigration status and did not explain the immigration
consequences of his plea. He said the interpreter went over his plea with him, but “the
only thing that was clear was about probation and everything else was just in such a
hurry.” He claimed he did not recall receiving any advisements from the court either. He
said that if he had known of the immigration consequences of his plea, he would have
preferred to take his chances at trial. Nevertheless, he admitted that he had an open
3 immigration case and did not tell his lawyer about that case. He also admitted that he
knew the plea would cause him to be deported but did not understand that it would also
prevent him from being naturalized or re-admitted.
Piedrasanta’s former counsel testified that his practice, particularly when a client
appeared to have “some type of Hispanic name,” was to gather information about their
current immigration status and consult with the public defenders’ immigration attorney.
He said he did that in this case, and the immigration attorney wrote up an immigration
advisement for Piedrasanta. He testified that he reviewed the immigration advisement
with Piedrasanta using two different Spanish interpreters.
His former lawyer then read the immigration advisement. The advisement noted it
was unclear if Piedrasanta had been previously deported, but that in any case United
States Immigration and Customs Enforcement (ICE) knew he was present in the country
without proper documentation. The advisement went on to say that the charged crime
had immigration consequences because it was a violent crime and a crime involving
moral turpitude. The advisement explained that a misdemeanor conviction for battery
against a spouse in violation of section 243, subdivision (e)(1), would avoid immigration
consequences, and that there were some felony charges that would be better for
immigration purposes than the charge Piedrasanta faced. The advisement concluded by
saying a conviction for corporal injury against a spouse in violation of section 273.5,
subdivision (a), “ ‘is a bad plea for a noncitizen.’ ” The advisement said that immigration
consequences included “mandatory detention with ICE after completion of any local
4 sentence . . . loss of most forms of relief, removal, and up to 20 years in federal prison for
return after removal.” The lawyer testified that he tried to get the prosecutor to agree to a
charge under section 243, subdivision (e), “many, many, many times,” without success.
He also reviewed his notes, which reflected that he “[d]iscuss[ed] the immigration issues
with client . . . . Client wants to do the deal now and hopes that he does not get deported.
Based on the victim’s showing up with a broken nose and surgery [it] is likely that he
may get convicted of [great bodily injury].”
Finally, Piedrasanta’s former lawyer also testified that it was his practice to fill out
a plea form, read it to his client—through a Spanish interpreter if necessary—and then
have the client initial and sign as appropriate. He said he did this with Piedrasanta. He
did not experience any difficulties with the Spanish interpreter, nor did Piedrasanta
express any confusion.
After hearing argument, the court denied the motion. The court noted that it
personally took Piedrasanta’s plea. Based on this, the court said it found some of
Piedrasanta’s representations about the nature of the plea hearing not credible. In
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Filed 3/8/23 P. v. Piedrasanta 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, E078614
v. (Super.Ct.No. FSB17004464)
LIVIN PIEDRASANTA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. William Jefferson
Powell IV, Judge. Affirmed.
U.S. Law Center and Sanjay Sobti, and Conrad A. Aragon, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, and Melissa Mandel and
Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
1 In 2018, Livin Piedrasanta pled no contest to inflicting corporal injury on a
spouse. In 2021 Piedrasanta filed a motion under Penal Code1 section 1473.7 seeking to
set aside his plea because he was not aware of its immigration consequences. The trial
court held an evidentiary hearing on the motion and denied it. On appeal, Piedrasanta
argues the court erred by concluding he was properly advised of the immigration
consequences of his plea. We affirm.
FACTS
Piedrasanta came to the United States from Guatemala in 2002 as an
undocumented immigrant. He has two children, both born in the United States. Both
children live with him. He is currently married and was married to another woman prior
to 2018. He claims he never left the United States.
In 2017, the San Bernardino County District Attorney charged Piedrasanta by
information with inflicting corporal injury on a spouse. (§ 273.5, subd. (a).) In 2018,
Piedrasanta agreed to plead no contest to an added second count of inflicting corporal
injury on a spouse. In exchange, the court dismissed the first count, and sentenced
Piedrasanta to 158 days in county jail and three years’ probation.
As part of his plea, Piedrasanta completed a change of plea form. Piedrasanta
initialed and signed an advisement on that form stating, “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 the offense(s) to which I plead
1 Unlabeled statutory citations refer to this code.
2 guilty/no contest.” (Italics added.) Both a Spanish language interpreter and defense
counsel also signed the form, averring that they read and explained the form to
Piedrasanta. When taking this change of plea, the court asked Piedrasanta whether he
had enough time to review his rights, the evidence against him, and possible defenses
with his attorney. Piedrasanta said he did. Defense counsel advised the court that
articulating a factual basis for Piedrasanta’s crime posed an immigration issue, so counsel
stipulated there was a factual basis for the plea without adopting specific facts as the
basis.
In 2021, Piedrasanta moved to vacate his conviction under section 1473.7. The
trial court held a hearing where it heard testimony from Piedrasanta and the public
defender who represented Piedrasanta in his plea. Piedrasanta testified that before his
plea several different public defenders represented him across nine court appearances.
He only met his plea counsel twice. He said everyone in court the day of his plea was in
a hurry, his counsel and the judge included. According to him, his counsel told him they
had to review and accept the offer quickly “because the Judge had to leave.” He said his
counsel never asked him for his immigration status and did not explain the immigration
consequences of his plea. He said the interpreter went over his plea with him, but “the
only thing that was clear was about probation and everything else was just in such a
hurry.” He claimed he did not recall receiving any advisements from the court either. He
said that if he had known of the immigration consequences of his plea, he would have
preferred to take his chances at trial. Nevertheless, he admitted that he had an open
3 immigration case and did not tell his lawyer about that case. He also admitted that he
knew the plea would cause him to be deported but did not understand that it would also
prevent him from being naturalized or re-admitted.
Piedrasanta’s former counsel testified that his practice, particularly when a client
appeared to have “some type of Hispanic name,” was to gather information about their
current immigration status and consult with the public defenders’ immigration attorney.
He said he did that in this case, and the immigration attorney wrote up an immigration
advisement for Piedrasanta. He testified that he reviewed the immigration advisement
with Piedrasanta using two different Spanish interpreters.
His former lawyer then read the immigration advisement. The advisement noted it
was unclear if Piedrasanta had been previously deported, but that in any case United
States Immigration and Customs Enforcement (ICE) knew he was present in the country
without proper documentation. The advisement went on to say that the charged crime
had immigration consequences because it was a violent crime and a crime involving
moral turpitude. The advisement explained that a misdemeanor conviction for battery
against a spouse in violation of section 243, subdivision (e)(1), would avoid immigration
consequences, and that there were some felony charges that would be better for
immigration purposes than the charge Piedrasanta faced. The advisement concluded by
saying a conviction for corporal injury against a spouse in violation of section 273.5,
subdivision (a), “ ‘is a bad plea for a noncitizen.’ ” The advisement said that immigration
consequences included “mandatory detention with ICE after completion of any local
4 sentence . . . loss of most forms of relief, removal, and up to 20 years in federal prison for
return after removal.” The lawyer testified that he tried to get the prosecutor to agree to a
charge under section 243, subdivision (e), “many, many, many times,” without success.
He also reviewed his notes, which reflected that he “[d]iscuss[ed] the immigration issues
with client . . . . Client wants to do the deal now and hopes that he does not get deported.
Based on the victim’s showing up with a broken nose and surgery [it] is likely that he
may get convicted of [great bodily injury].”
Finally, Piedrasanta’s former lawyer also testified that it was his practice to fill out
a plea form, read it to his client—through a Spanish interpreter if necessary—and then
have the client initial and sign as appropriate. He said he did this with Piedrasanta. He
did not experience any difficulties with the Spanish interpreter, nor did Piedrasanta
express any confusion.
After hearing argument, the court denied the motion. The court noted that it
personally took Piedrasanta’s plea. Based on this, the court said it found some of
Piedrasanta’s representations about the nature of the plea hearing not credible. In
particular the court noted that while other judicial officers can sometimes rush, “I tend
not to be rushed,” and “[t]he concept that everything was rushed is simply not true.” The
court pointed out that defense counsel referred to an “immigration issue” during the plea
hearing, indicating Piedrasanta had discussed immigration consequences with his counsel
before pleading. The court found Piedrasanta’s claims that he did not hear or understand
certain advisements to not be credible, and it found defense counsel’s testimony credible
5 and consistent with what it knew about defense counsel’s practice. In short, the court
found Piedrasanta’s testimony “completely unbelievable.”
Piedrasanta appealed the denial of his motion.
ANALYSIS
Section 1473.7, subdivision (a)(1), allows anyone not in criminal custody to file a
motion to vacate a conviction or sentence if “ ‘[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.’ ” (People v. Rodriguez (2021) 60
Cal.App.5th 995, 1002.) Where a party moves to vacate their conviction or sentence
under section 1473.7, the moving party must show only “that one or more of the
established errors were prejudicial and damaged his ‘ability to meaningfully understand,
defend against, or knowingly accept the actual or potential adverse immigration
consequences of [his] plea.’ ” (People v. Camacho (2019) 32 Cal.App.5th 998, 1008-
1009; see People v. Mejia (2019) 36 Cal.App.5th 859 (Mejia).) A court should vacate a
plea if “the defendant simply proves by a preponderance of the evidence 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.’ ” (Mejia, at p. 871.)
6 When reviewing decisions under section 1473.7, we exercise our “ ‘independent
judgment to determine whether the facts satisfy the rule of law.’ ” (See People v. Vivar
(2021) 11 Cal.5th 510, 523-527.) This is not the same as de novo review. Under
independent review, “ ‘ “the credibility of witnesses the [superior court] heard and
observed” ’ are entitled to particular deference, even though courts reviewing 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.)
However, “[w]here . . . the facts derive entirely from written declarations and other
documents . . . ‘[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.” (Id.
at p. 528.) Thus, we defer to the trial judge’s factual findings based on live testimony but
need not defer to factual findings based on the trial judge’s review of the record.
Based on our independent judgment, we conclude Piedrasanta has not
demonstrated any error in his immigration advisements. His former lawyer’s testimony
was sufficient to allow the trial court to conclude Piedrasanta was properly advised of the
immigration consequences of his plea. Indeed, based on defense counsel’s testimony,
Piedrasanta’s immigration advisement was fairly comprehensive. Piedrasanta was told
that his plea would result in deportation, that he faced prison time if he attempted to
return, and that there were few options to avoid immigration consequences based on the
charged acts. His counsel testified that he attempted to obtain a plea to a particular crime
that would avoid immigration consequences but was unable to do so. Finally,
7 Piedrasanta was provided advice that made it a reasonable choice for him to decide to
plead as he did, which is that, given the likelihood that he inflicted great bodily injury, he
was likely to do worse with later offers or conviction at trial. Piedrasanta acknowledged
that he understood that his plea carried the risk of deportation, both at the time of the plea
and in his testimony at the motion hearing.
Because we find no error in the advice given to Piedrasanta, we need not address
whether the advice prejudiced him by damaging his ability to understand or accept his
plea. However, his former counsel testified that Piedrasanta said he understood the plea
would result in deportation, and Piedrasanta later admitted he knew the plea carried a risk
of deportation. While Piedrasanta now claims he misunderstood that the plea would also
prevent his re-admission to the United States and naturalization, the fact that he knew he
could be removed based on the plea indicates he was aware that the plea carried serious
immigration consequences. Piedrasanta’s former lawyer testified that he advised
Piedrasanta that he could face up to 20 years in prison for return after deportation.
Piedrasanta admittedly understood some of the immigration consequences of his plea,
and there is evidence to suggest that he was told all of those consequences.
Accordingly, we conclude Piedrasanta has not demonstrated an error affecting his
ability to “meaningfully understand, defend against, or knowingly accept the actual or
potential adverse immigration consequences of a” plea of guilty under section 1473.7.
8 DISPOSITION
We affirm the order denying Piedrasanta’s section 1473.7 motion to vacate his
conviction.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J. We concur:
FIELDS Acting P. J.
MENETREZ J.