People v. Camacho

• Decision Date: 27 February 2019
• Docket Number: B288159
• Citation: 32 Cal.App.5th 998,244 Cal.Rptr.3d 398
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Garofy CAMACHO, Defendant and Appellant.

32 Cal.App.5th 998

244 Cal.Rptr.3d 398

The PEOPLE, Plaintiff and Respondent,

v.John Garofy CAMACHO, Defendant and Appellant.

B288159

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

Filed February 27, 2019

Danish A. Shahbaz, Los Angeles, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. Mathews and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

CHAVEZ, J.

Appellant John Garofy Camacho (defendant) appeals from the denial of his motion pursuant to Penal Code section 1473.7,¹ to vacate his conviction of possession of marijuana for sale, on the ground that prejudicial errors were made which damaged defendant’s ability to understand or defend against the adverse immigration consequences of his nolo contendere plea. During the pendency of this appeal, the Legislature amended section 1473.7. The parties filed supplemental briefs to address the clarified statute. We conclude that the evidence supported defendant’s motion. We thus reverse with directions to the trial court to grant the motion to vacate defendant’s conviction.

BACKGROUND

In 2009 defendant was charged with violating Health and Safety Code section 11359, possession of marijuana for purposes of sale. He pled no contest to the charge under the terms of a plea agreement which provided for three years felony probation and community service. At the request of defense counsel, the court stated that if defendant returned in 18 months with a clear record, the court would "definitely consider" granting a motion pursuant to section 1203.4, to expunge the conviction.

In October 2016, a section 1203.4 motion was filed on defendant’s behalf. The motion was granted, the plea and conviction were vacated and replaced with a plea of not guilty. The information was then dismissed.

On February 14, 2017, defendant’s petition under Proposition 64 was granted, and the charge was reduced to a misdemeanor ( Health & Saf. Code, § 11361.8, subd. (f) ).

In September 2017, defendant retained new counsel who filed the motion to vacate defendant’s conviction of the original charges. After a hearing, the trial court denied the motion on January 19, 2018. Defendant filed a timely notice of appeal.

Defendant’s declaration in support of the motion

Defendant declared he was born in Mexico in 1985 and brought to the United States by his grandmother when he was two years old. He attended Florence Avenue Elementary School, Edison Middle School, and Huntington Park High School. He married a United States citizen and has two United States citizen children, ages 5 and 11. He was employed as a tow truck driver. Defendant was arrested in August 2009 for possession of marijuana with intent to sell and released on bail. Defendant retained an attorney, who reviewed the police report and met with defendant. Defendant was told that his attorney would try to get a disposition with no jail time, but never discussed immigration issues or any settlement offers, nor was he instructed to consult with an immigration attorney.

When defendant entered his plea he heard the judge say the conviction could lead to deportation. However, his attorney told him everything would be fine. Defendant’s attorney never told defendant of the consequences of a plea to Health and Safety Code section 11359, but told him on the day he entered the plea that defendant would not serve jail time if he pled that day. Counsel did not tell defendant that he could take the case to trial or discuss the possible outcome. Defendant declared: "I would have never taken the plea that I was given if I would have known that it would have not permitted me to obtain legal status in the United States. I have two United States citizen children and my wife is a United States citizen. I cannot leave them here in the United States without being their [sic ] to support them."

Defendant’s testimony

Defendant testified at the hearing that he was brought to the United States at two years old, and has never left this country since then. As of the day of the hearing, he had been married to his United States citizen wife for 12 years, with two children, ages 11 and 5. In 2009, when defendant was arrested for possession of marijuana, he retained an attorney with whom he met five or six times in all, sometimes at counsel’s office, sometimes at the courthouse. Defendant could not remember whether they discussed his immigration status during their first meeting, but he told counsel at one meeting that he was not born in the United States and was undocumented. When they did discuss his immigration issue it was mostly about avoiding jail time. Defendant thought that if he received jail time he would be deported.²

Defendant also testified that his attorney did not tell him that this charge would subject him to mandatory deportation or administrative removal without a court deportation hearing, or that the conviction would prevent him from ever becoming a legal permanent resident. Defendant was also never directed to consult with an immigration attorney to discuss his options. Defendant first learned of the severe immigration consequences when he retained his present counsel for the purpose of adjusting his immigration status based upon his marriage.

Defendant recalls that at the time of his plea he would have been fired from his job if he had gone to jail for 120 days, as originally offered, but the no-custody disposition permitted him to keep his job. After probation was successfully completed defendant’s attorney returned to court to have defendant’s conviction expunged, and then in 2017, defendant successfully brought a Proposition 64 petition to have the conviction deemed a misdemeanor.

Attorney’s testimony

Defendant’s attorney testified that after being retained by defendant they did not discuss the charges until he reviewed the police report. He did not remember discussing immigration consequences with defendant or what was said, but they did discuss the subject, as counsel discusses immigration consequences with all his clients. He asks clients whether there are immigration issues and he notes that in their files, though he made no such notes in this case. Counsel then testified that he tells "every client [who is] here with a visa or a green card or illegal, you always have the risk of getting deported," but he does not keep notes about what he does or does not advise clients. A no-jail plea agreement was reached because defendant had a job and the facts of the case deserved a no-jail disposition.

Defendant’s attorney could not recall whether he attempted to learn possible immigration consequences of defendant’s plea. He told all clients that there was always a risk of getting deported. However, he did not remember doing so in this case. He could not remember what the consequences of a conviction of Health and Safety Code section 11359 were at the time of the plea, and thought that things had changed since then. He did tell defendant that the charge could subject him to deportation. His practice at that time was to tell clients that any felony or serious misdemeanor could get them deported, and that they should get the advice of an immigration attorney. He thought that it would help with defendant’s immigration consequences if the charge could be reduced to a misdemeanor, but the prosecutor would not agree to a misdemeanor because of the quantity of marijuana.

After review of the plea transcript where counsel stated to the court: "The other thing I did tell him, because of his immigration problems, maybe the court would entertain a motion to terminate early after maybe a year and a half and expungement, so that might help." Counsel recalled making the statement to the sentencing court, and explained that he intended to seek expungement of the conviction under section 1203.4, and thought that an expungement under that statute would "certainly help" with defendant’s immigration consequences, "especially if it was knocked down to a misdemeanor." He also remembered telling defendant that "we’re going to get it down to a misdemeanor and expunged early and maybe that will help him." He brought up the possibility of expungement in court in order to have it on the record that there were immigration reasons for expungement.

Counsel testified that although he thought it would help defendant’s status, he had not investigated the effect of expungement in immigration cases, adding that he was unable to research immigration law because he was not an immigration lawyer. He usually advises all his clients to consult an immigration attorney before entering a plea, but he did not remember if told this to defendant. Counsel later consulted an immigration attorney regarding Proposition 64, and based on that, he told defendant that a Proposition 64 petition would help him.

The ruling

The trial court found the motion premature because no deportation proceedings had been initiated against defendant, and denied the motion for that reason.³ The trial court also denied the motion on the basis of its finding that counsel’s representation did not fall below the standards of what was reasonably expected under the customs and practices at the time. The court noted that Padilla v. Kentucky⁴ was decided the same year as defendant’s plea. The court noted defendant’s concern was not getting jail time, and found no facts indicating prejudice. The court concluded that there was no prejudice to defendant even if trial counsel had not provided reasonable representation with regard to immigration consequences, adding that it found no evidence to support defendant’s current counsel’s claim that there could have been an "immigration-safe" plea.

DISCUSSION

I. The immigration consequences of defendant’s plea

Because possession of marijuana for sale is an "aggravated felony" under federal law and was an aggravated felony at the time of defendant’s plea ( 8 U.S.C. § 1101...