People v. Carranza

• Decision Date: 06 February 2020
• Docket Number: A155790
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS CARRANZA, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS CARRANZA, Defendant and Appellant.

A155790

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

February 6, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. 41053370)

In 1997, defendant Juan Carranza, who is not a citizen of the United States, pleaded guilty to assault by force likely to produce great bodily injury and possession of a controlled substance. In 2018, he filed a motion to withdraw his pleas, asserting multiple grounds, including newly-enacted Penal Code section 1473.7, which authorizes a motion to vacate a conviction or a sentence where, due to error, defendant did not understand the potential adverse immigration consequences of his guilty plea. The trial court denied the motion.

After defendant filed his notice of appeal, Penal Code section 1473.7 was amended to clarify that a moving party need not show ineffective assistance of counsel to prevail on a section 1473.7 motion, an amendment since construed by our colleagues in the Second and Fourth Appellate Districts. (See People v. Mejia (2019) 36 Cal.App.5th 859; People v. Camacho (2019) 32 Cal.App.5th 998.) Because the statute was amended after the trial court ruled on defendant's motion, we reverse and remand to allow the trial court to consider the motion in light of the amendment and new authority.

BACKGROUND

This case dates back to 1997, when defendant was charged with four counts of assault with a deadly weapon (counts 1 through 4; Pen. Code, § 245, subd. (a)(1)),¹ and one count each of carrying a concealed firearm (count 5; § 12025, subd. (b)(3)), possession of a controlled substance (count 6; Health & Saf. Code, § 11377, subd. (a)), and vandalism (count 7; § 594, subd. (b)(3)).

On June 16, 1997, defendant pleaded guilty to one felony count of assault by force likely to produce great bodily injury (an amended section 245 charge). In exchange for his plea, he was placed on probation for two years, with 120 days in county jail. As to the drug possession charge (count 6), criminal proceedings were suspended and defendant was diverted to a drug treatment program. The remaining charges were dismissed.

Four months later, the court found that defendant had failed to comply with the terms of diversion so diversion was terminated and criminal proceedings were reinstated on the drug possession charge. Defendant then pleaded guilty to that charge. He was returned to probation for two years on counts 1 and 6, with 45 days in county jail.

On May 29, 2018—more than 20 years after his guilty pleas—defendant filed a motion to withdraw his pleas. The motion was primarily based on section 1473.7, which, effective January 1, 2017, authorizes a motion to vacate a conviction or a sentence where defendant's "conviction or sentence is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowinglyaccept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendre." (§ 1473.7, subd. (a)(1).) Defendant argued that his convictions under section 245, subdivision (a) and Health and Safety Code section 11377 both subjected him to adverse immigration consequences, but he did not meaningfully understand the immigration consequences of his plea in 1997. He further argued he was prejudiced by this error because he will suffer immigration consequences as a result of his pleas, and he would not have taken the plea bargain had he known he would be facing deportation.

Defendant also asserted four alternative grounds for the withdrawal of his guilty pleas: (1) defense counsel was ineffective by failing to provide accurate and affirmative advice of the potential immigration consequences, as required by sections 1016.2 and 1016.3 and Padilla v. Kentucky (2010) 559 U.S. 356; (2) his pleas were based on mistake, ignorance, or inadvertence, which constitute grounds for withdrawal under section 1018; (3) the trial court did not conduct an inquiry into the factual basis of his pleas in violation of section 1192.5, which requires the court to make an inquiry to satisfy itself that there is a factual basis for a plea of guilty or no contest; and (4) denial of his motion would deprive him of due process and his "fifth, sixth, eighth and fourteenth amendment guarantees."

Defendant's motion came on for hearing on July 18, 2018. Following argument, the court continued the matter to allow the district attorney an opportunity to file an opposition and defendant a reply, upon which the matter would be submitted without further argument.

On August 29, 2018, having received the ordered briefing, the court issued a memorandum of decision. It began by noting that section 1473.7 requires proof by a preponderance of the evidence of: (1) error damaging defendant's understanding of the adverse immigration consequences of hisplea; (2) prejudice resulting from the error; and (3) reasonable diligence in filing the motion after notice to appear in immigration court or notice from immigration authorities that asserts the conviction or sentence as a basis for removal. The court then found that defendant "presents no evidence in support of item 3 above," and denied the motion on that ground. It then went on to reject all of the theories asserted by defendant, as follows:

"Defendant was convicted by plea to a felony [Penal Code section] 245(a)(1) (assault by force likely to cause great bodily injury) on 6/16/97 [and was] convicted after failure on diversion to a felony violation of [Health and Safety Code section] 11377 (possession of methamphetamine) on 10/17/97. This motion was filed some 20 years after these convictions. The plea forms used by the defendant advised him that he could face immigration consequences. This satisfied [Penal Code section] 1016.5 then in effect. The forms also contain paragraphs where the defendant agreed there were factual bases for his pleas. His counsel also signed that part of the plea forms stipulating there were factual bases for the pleas. This satisfies the need for agreeing to factual bases. P. v. Palmer (2013) 58 [Cal.]4th 110, 118.

"Defendant claims counsel did not provide him adequate information of immigration consequences upon entering the pleas. The Padilla case relied on by counsel is not retroactive in application. Chaidez v. US (2013) 568 US 342, 358. Defendant offers no evidence of the specific advice he received from counsel at the time of his pleas. There is no independent objective evidence of his claims: no transcripts or declarations from his then counsel. In addition defendant admits the pleas were advantageous in terms of punishment. No ineffective assistance of counsel is shown or prejudice except for defendant's self-serving declaration.

"A defendant seeking post-conviction relief must show due diligence in pursuing a remedy. P. v. Mbaabu (2013) 213 [Cal.App.]4th 1139, 1149-50. Twenty years delay is hardly due diligence. He has shown nothing about his immigration status or any pending immigration proceedings. The court finds defendant has now [sic] shown a right to relief by a preponderance of the evidence.² The motion on all other grounds is denied."

Defendant filed this timely appeal.

DISCUSSION

We begin with the timeliness of defendant's motion, specifically, the trial court's finding that he failed to exercise reasonable diligence in bringing his section 1473.7 motion. Section 1473.7, subdivision (a)(1) authorizes a motion to vacate by a "person who is no longer in criminal custody . . . ."³ Subdivision (b)(1) confirms that the motion "shall be deemed timely filed at any time in which the individual filing the motion is no longer in criminal custody." As defendant here was no longer in criminal custody when he filed his motion, it was timely. (See, e.g., People v. Novoa (2019) 34 Cal.App.5th 564, 593 [declining to apply the doctrine of laches to a defendant who "pled guilty in 2003 but did not seek relief until 2017" because "[s]ection 1473.7 provided [the defendant] with new grounds on which to challenge his guilty plea" and "[h]e could not have brought such a motion until after January 1, 2017"].)

Section 1473.7, subdivision (b) does contain a due diligence requirement, but that requirement is triggered by the later of either defendant receiving either "a notice to appear in immigration court or othernotice from immigration authorities that asserts the conviction or sentence as a basis for removal or the denial of an application for an immigration benefit, lawful status, or naturalization" (§ 1473.7, subd. (b)(2)(A)), or a "[n]otice that a final removal order has been issued against the moving party, based on the existence of the conviction or sentence that the moving party seeks to vacate." (Id., subd. (b)(2)(B).) There was no indication that either circumstance applied here. The trial court thus erred in finding that the reasonable diligence requirement of section 1473.7, subdivision (b) defeated defendant's motion. We therefore turn to the substance of the motion.

Enacted in 2016 and effective January 1, 2017, section 1473.7 allows a noncitizen 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 plea of guilty or nolo contendere." (§ 1473.7, subd. (a)(1); Stats. 2016, ch. 739, § 1.) California courts uniformly interpreted section 1473.7 to require a showing of ineffective...