People v. Bravo

• Decision Date: 23 December 2020
• Docket Number: E072782
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Esteban Zarate BRAVO, Defendant and Appellant.

58 Cal.App.5th 1161

273 Cal.Rptr.3d 211

The PEOPLE, Plaintiff and Respondent,

v.Esteban Zarate BRAVO, Defendant and Appellant.

E072782

Court of Appeal, Fourth District, Division 2, California.

Filed December 23, 2020

OPINION

RAMIREZ, P. J.

IINTRODUCTION

On June 24, 1997, defendant Estaban Zarate Bravo pleaded guilty to and was convicted on a plea bargain agreement of: a felony violation of domestic violence ( Pen. Code,¹ § 273.5, subd. (a) ; count 1) and felony violation of child cruelty (§ 273a, subd. (a); count 2). The trial court sentenced defendant to two years' incarceration, suspended, and placed him on formal probation for 36 months on terms and conditions including 25 days' custody, for which he was granted time served.

On December 11, 2018, defendant filed a motion to vacate the judgment pursuant to sections 1016.5 and 1473.7. On March 19, 2019, the trial court denied the motion. Here, defendant contends that this court should grant the motion to vacate or, alternatively, remand to and direct the trial court to grant the motion.

IIFACTUAL BACKGROUND

The record does not contain the facts underlying defendant's pleas and convictions. This background will focus on what procedural facts can be gleaned from the record surrounding defendant's claim that he was inadequately admonished as to the immigration consequences of his guilty plea during the plea bargain process, such that his plea agreement was not entered into willingly, intelligently, and voluntarily, to justify vacating the judgment.

The felony complaint alleged that as to count 1, on June 7, 1997, defendant violated section 273.5, subdivision (a), by willfully and unlawfully inflicting a corporal injury resulting in a traumatic condition upon Lucy D., who was defendant's spouse; and, as to count 2, also on June 7, 1997, defendant violated section 273a, subdivision (a), by willfully and unlawfully, under circumstances and conditions likely to produce great bodily harm and death, cause and permit an infant, Esteban Jr., to suffer, and inflicted unjustifiable physical pain and mental suffering, and did willfully cause and permit the person and health of said infant to be injured.

Defendant is a native of Mexico and Spanish is his first language. He appeared in custody at a hearing on June 24, 1997, at which he pleaded guilty to both counts with the use of an interpreter. He was admonished as to his rights, and initialed acknowledgment on a form provided therefor.² These rights included the right to a speedy trial; to face and cross-examine witnesses; to ask the court to compel witnesses to attend trial; against self-incrimination; and to be represented by a lawyer. He then initialed the statement that "I understand that when I enter a plea of guilty, I waive, or give up each of the rights as stated above. "

Immediately following that recitation and waiver, the form enumerates the "Consequences of Plea," stating, "In addition to the consequences discussed in open court, and on page two of this form, I am further aware that my guilty plea to a felony will have the following consequences:" followed by six specific statements of consequences including firearm ownership, restitution fines, and others. The sixth such consequence states, "If I am not a citizen of the United States, I understand that this conviction 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." The form was signed by the defendant, defense counsel David Ross, and interpreter Elias Uribe. The plea agreement specified that the custody term would be two years suspended, with a restitution fine of not more than $200, and that a total of 25 days' credit for time served was computed. Defendant also initialed a block stating, "I have had an adequate time to discuss my case with my attorney, including time to discuss (1) my constitutional rights, (2) the consequences of any guilty plea, and (3) any defenses I may have to the charges against me." Defendant's defense counsel, David Ross, also signed the form under the block stating, "I am satisfied that (1) the defendant understands his/her constitutional rights and understands that a guilty plea would be a waiver of these rights; (2) that the defendant has had an adequate opportunity to discuss his/her case with me, including any defenses he/she may have to the charges; (3) that the defendant understands the consequences of the his/her [sic ] guilty plea."

The immediate advantage of his plea was that defendant was to be released from custody that same day so that he could return to his construction job without being fired and could therefore support his spouse and their child.³ Of more immediate importance, defendant was informed by counsel and the prosecution that Immigration and Customs Enforcement (ICE) would conduct a sweep of the county jail where he was being held by the next morning; being released that afternoon allowed him to avoid the ICE sweep and likely deportation.

Defendant now contends that at the time he executed the plea agreement, pleading guilty to sections 273.5, subdivision (a), and 273a, subdivision (a), he was unaware of future immigration consequences of his plea. Specifically, he asserts that he recently consulted with an immigration attorney (not appellate counsel appearing here) for advice as to his intent to renew an application for lawful permanent status, for which he contends he is otherwise eligible through his wife who is a U.S. citizen; he also contends his convictions resulting from his guilty pleas will result in certain denial of his intended citizenship application. Finally, he contends that he was never informed that he could be deported at any time after entering these pleas. In that light, he claims by declaration he was never admonished about these immigration consequences pursuant to the requirements of section 1016.5.

At the time he prepared his declaration, which he executed on November 19, 2018, he was under the belief that no copy of the plea agreement existed. The trial court found a copy in its files and provided notice and copies of the agreement to the parties, which is the source of the terms quoted above.

Defendant, by counsel, then acknowledged that the admonishment had been given and that he had initialed and signed the appropriate blocks on the plea bargain form:

"[Defense Counsel]: [¶] ...[¶] At the time that Mr. Bravo took the plea, it's our position that he entered the plea but he failed to understand the consequences or knowingly understand that the immigration consequences of a guilty plea would result in him not being able to adjust his status to a permanent resident at the time as it is today. [¶] He does recall, as I reviewed the plea form with Mr. Bravo outside in the hall, receiving that immigration admonishment. However, it is clear he—

"[The Court]: The one he claims he didn't receive in his declaration?

"[Defense Counsel]: Right. He—he now recalls it as I showed it to him that those are his initials. He doesn't really remember seeing it, but he did say that those were his initials.

"[The Court]: Also have his signature, which is the same one on the current declaration.

"[Defense Counsel]: Well, the main issue is that that may prevent us from going forward with a 1016.5 motion. However, it will still allow us to go forward on the 1473.3 motion. And with that one, our contention again is that he did not fully understand the consequences as he pled. [¶] And I will submit based on that, Your Honor, that it is not—it was not that Mr. Bravo was not given the proper admonishment, that it was going to reflect a harsh consequence to his immigration status and that's what's affected him right now."

Defendant further contends that had he known these consequences, he would not have executed the plea agreement but would have relied on his defenses and gone to trial. He believes the prosecution's case was weak based on his then girlfriend's statement to the court at his arraignment that he had not "touch[ed], hurt or do[ne] any of the things to her or our son that I was accused of." Further, he claims that the police reports with witness statements prepared by the police "contained factual allegations that were wrong."

IIIDISCUSSION

A. Standard of Review

To the extent that a defendant seeks review of the denial of a motion to vacate a plea based on violation of a constitutional right, such as ineffective assistance of counsel under the Sixth Amendment, such a violation would implicate a mixed question of law and fact and therefore we would independently review the denial. ( People v. Olvera (2018) 24 Cal.App.5th 1112, 1116, 235 Cal.Rptr.3d 200 ; see People v. Vivar (2019) 43 Cal.App.5th 216, 224, 256 Cal.Rptr.3d 443, review granted Mar. 25, 2020, S260270.⁴ ) Here, however, defendant explicitly eschews any claim of ineffective assistance of counsel. Although he relies on People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76, 232 Cal.Rptr.3d 529, to argue an independent review or de novo standard of review, Ogunmowo addresses a mixed question of law and fact based on a claim of ineffective assistance of counsel that is absent here. Instead, defendant specifically relies simply on the statutory language of sections 1016.5 and 1473.7. Accordingly, "[t]o the extent the motion asserts statutory error or a deprivation of statutory rights, the denial is reviewed for an abuse of discretion." ( People v. Rodriguez (2019) 38 Cal.App.5th 971, 977, 251 Cal.Rptr.3d 538 [pertaining to section 1473.7].) The same is true of motions under section 1016.5. ( People v. Superior Court (Zamudio ) (2000) 23 Cal.4th 183, 192, 96 Cal.Rptr.2d 463, 999 P.2d 686.) We therefore review the superior court's denial of the motion to vacate for abuse of discretion.

B. Defendant's Claim

Defendant contends that his guilty pleas were not voluntary, knowing nor intelligent and that this court should grant his motion to vacate judgment...