In re Hernandez
| Docket Number | F076752 |
| Decision Date | 08 September 2023 |
| Parties | In re ANGELA HERNANDEZ On Habeas Corpus. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Nos HC15330A & BF150639A. Steven M. Katz, Judge.
Law Office of Jacob M. Weisberg and Jacob M. Weisberg for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General Michael P. Farrell, Assistant Attorney General, Julie A Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.
Angela Hernandez (appellant) appealed from the denial of her application to vacate a conviction due to inadequate advice about immigration consequences. In 2020, we originally affirmed the trial court's order. Appellant filed a petition for review. The California Supreme Court granted the petition and remanded the case to us with directions to vacate our decision and reconsider the cause in light of People v. Vivar (2021) 11 Cal.5th 510 (Vivar). We again affirmed the order. Appellant filed another petition for review. The high court granted the second petition and remanded the case to us with directions to vacate our decision and reconsider the cause in light of People v. Espinoza (2023) 14 Cal.5th 311 (Espinoza).
Appellant filed two requests for judicial notice of certain court documents, including one for judicial notice of a February 24, 2023 "NOTICE OF INTENT TO TAKE CASE OFF OF THE COURT'S CALENDAR" from the San Francisco Immigration Court. The Attorney General does not oppose these requests and the matters to be judicially noticed are not reasonably open to dispute. We grant appellant's requests. (See People v. Hardy (1992) 2 Cal.4th 86, 134-135.)
We have reconsidered the cause in light of Espinoza, and - once again - affirm the order.[1]
On September 9, 2013, appellant was charged by complaint with sale or transportation of marijuana (Health &Saf. Code § 11360, subd. (a); count 1) and possession of marijuana for sale (id., § 11359; count 2). According to the probation officer's report, which in turn summarized law enforcement reports, a confidential informant told Kern County Sheriff's deputies that appellant wanted to sell to the informant 105 pounds of marijuana at $900 per pound and that they had agreed to meet at a store in Delano on August 16, 2013. On that date, law enforcement officers were at the location and, when appellant arrived, they took her into custody. A search of the vehicle in which appellant was the sole occupant revealed five black trash bags containing approximately 105 pounds of processed marijuana. Appellant admitted having approximately 100 pounds of marijuana in the vehicle, and said she would be making $2,000 for it. She said she would be receiving the money for delivering the marijuana, not for selling it. She said the man who told her to deliver it placed the marijuana in her vehicle in a grape vineyard. She admitted being present when the marijuana was loaded into her vehicle, but denied it belonged to her. She said she had her own marijuana-approximately 49 plants and about a pound of processed marijuana-at her residence, and that she had a marijuana recommendation card.
On October 31, 2013, pursuant to section 859a, appellant pled guilty or nolo contendere to both counts of the complaint on the condition that she serve 180 days in custody.[2] As part of the change of plea process, appellant initialed the applicable paragraphs of the "Felony Advisement of Rights, Waiver and Plea Form," including the following provision:
Appellant signed a declaration under penalty of perjury that she had read, understood, and initialed each item, and that everything on the form was true and correct. Appellant's attorney, J.M. Irigoyen, signed a statement that he had reviewed the form with his client and explained the direct consequences that would result from a plea of guilty or no contest, including "any possible immigration consequences that may result from this plea," and that he was satisfied his client understood "these things." The form also contained a statement signed by a Spanish language interpreter, attesting that the interpreter had been sworn or had a written oath on file, and certifying that the interpreter translated the entire form to appellant; appellant stated to the interpreter that she understood the contents of the form; and appellant initialed and signed the form in the interpreter's presence.
At the change of plea hearing, appellant was assisted by a certified Spanish language interpreter. In response to the trial court's inquiry, appellant acknowledged that she signed, dated, and initialed the form; she understood everything on that form; and she did not have any questions about what could happen if she entered a plea.
On January 3, 2014, imposition of sentence was suspended as to count 1, and appellant was placed on probation for three years on various terms and conditions, including that she serve 180 days in jail. Sentence on count 2 was stayed pursuant to section 654.
On December 6, 2016, appellant filed a petition for writ of habeas corpus, alleging her conviction should be vacated, and she should be allowed to withdraw her plea, because she received ineffective assistance of counsel based on defense counsel's failure to advise her of the adverse immigration consequences that could result from her plea. Appellant, a citizen of Mexico and lawful permanent resident of the United States, asserted she was now facing removal (deportation) as a result of her plea, and that she would have exercised her right to a jury trial had she been aware of the immigration consequences at the time she pled nolo contendere.[3]
On January 26, 2017, appellant's petition was denied. The trial court ruled it had no jurisdiction to adjudicate the petition, since appellant was no longer in actual or constructive custody; hence, under section 1474, there was no habeas corpus remedy as a matter of law.
Appellant moved for reconsideration, in part on the ground the court failed to take into account section 1473.7, which took effect on January 1, 2017, and permitted a person no longer in custody to prosecute a motion to vacate a conviction. In response, the trial court reopened the habeas proceeding.
On September 27, 2017, an evidentiary hearing was held. The court took judicial notice of its file in appellant's underlying criminal case. It also took judicial notice of federal documents seeking appellant's deportation.[4] At the hearing, appellant testified that she was currently 59 years old, came to the United States when she was 19 years old, and became a lawful permanent resident in 1985. She was married; she had five children in the United States, three of whom were lawful permanent residents and two of whom were citizens. She had 14 grandchildren, and took care of two of them three times a week. Her mother was deceased, but her father resided in Fresno.
Following her arrest in 2013, appellant retained Irigoyen, who passed away prior to the current proceedings. During the course of Irigoyen's representation, appellant advised him that she was a lawful permanent resident. She pled guilty to the charges because Irigoyen told her that she had to. He did not tell her that if she pled guilty, she would almost certainly be deported. Had he told her that, she would have gone to trial, because she did not want to be sent to Mexico. Appellant acknowledged her signature and initials were on the "Felony Advisement of Rights, Waiver and Plea Form," but she did not recall going over it with Irigoyen before she entered her plea, and the paragraph about alien status was never read to her. She was never told she could be deported. The document was never read to her. Irigoyen told her to sign and initial it. She did not recall having an interpreter read the document to her, or the court asking if she understood everything on the form. She never thought there was anything on the form concerning deportation. Irigoyen, who did not speak Spanish, never brought an interpreter to talk to her. The only time she talked to an interpreter was in court, never outside of court.
On October 16, 2017, the trial court denied the petition for writ of habeas corpus. In its written ruling, the court noted it was unable to hear testimony from Irigoyen; however, in opposition to appellant's testimony, the court had a record of what Irigoyen did by virtue of the plea form, change of plea transcript, and the court file. The court summarized those documents, and found the plea form and plea colloquy indicated Irigoyen properly advised appellant regarding the immigration consequences of entering a plea. The court also observed that at the time of sentencing, appellant was advised she could not reenter the United States without proper authorization, and she signed her terms and conditions of probation, which also contained such an advisement. The court found the foregoing "belie[d]" appellant's claim that she entered her plea without proper immigration advice. The court concluded appellant's claims were post hoc assertions that were contradicted by the record of the plea.
Appellant moved for reconsideration or modification of the order...
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