People v. Chen

• Decision Date: 28 June 2019
• Docket Number: A152754
• Citation: 249 Cal.Rptr.3d 360
• Parties: The PEOPLE, Plaintiff and Respondent, v. Min Chang CHEN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

249 Cal.Rptr.3d 360

The PEOPLE, Plaintiff and Respondent,

v.Min Chang CHEN, Defendant and Appellant.

A152754

Court of Appeal, First District, Division 3, California.

Filed June 28, 2019

Stanley D. Radtke, Burlingame, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Bacerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth Schalit, Supervising Deputy Attorney General, Melissa J. Kendra, Deputy Attorney General, for Plaintiff and Respondent.

Siggins, P.J. Defendant Min Chang Chen, also known as Ivy Chang Chen, appeals the denial of her motion to vacate a conviction under Penal Code section 1473.7.¹ Chen contends her trial counsel failed to properly advise her of the adverse immigration consequences of her plea agreement and that the erroneous advisement damaged her ability to meaningfully understand, defend against, and knowingly accept those consequences. We affirm the denial of her motion.

BACKGROUND

In May 2012, Napa Special Investigations Bureau found 262 marijuana plants growing in a house on Patricia Drive in American Canyon, following a fire at the property, where the utilities appeared to have been bypassed. Agents traced the house to Chen and her brother, who were located and arrested. They executed a search warrant for the search of Chen's family restaurant and residence in Vallejo. Chen was charged with cultivating marijuana ( Health & Saf. Code, § 11358 ) (count one); possession of marijuana for sale ( Health & Saf. Code, § 11359 ) (count two); and theft of services (§ 498, subd. (b)) (count three).

In June 2012, Chen was arraigned on these charges and completed an arraignment form which stated, "If you are not a United States citizen, a plea of Guilty or No Contest could result in your deportation, exclusion from admission to this country, or denial of naturalization." Chen signed the form, attesting she understood its contents, and her court interpreter also signed the form, certifying it had been translated to Chen.

In July 2012, pursuant to a negotiated disposition, Chen pleaded no contest to cultivation of marijuana in violation of Health and Safety Code section 11358. Counts two and three were dismissed. The plea form indicated a maximum penalty of three years in prison for the Health and Safety Code section 11358 violation. On her plea form Chen initialed the statement regarding the consequences of her plea: "I understand that, if I am not a United States citizen, a plea of guilty or no contest could result in my deportation, exclusion from admission to this country, or denial of naturalization." Chen also signed the form, as did her interpreter who certified it was translated to Chen.

At the hearing, with the aid of an interpreter, the trial court asked Chen, "Did the interpreter read it to you, did you understand it, and did you sign it?" The court also asked Chen if the initials on the plea form were hers and if she had had enough time to discuss her decision with her attorney. Chen responded, "Yes." Asked if she had any questions about the contents of the plea form, Chen said, "No."

Probation's presentence report was completed with the assistance of an interpreter. In her August 2012 interview with probation following her plea, Chen "admitted her actions" and stated she and her brother learned how to grow marijuana by talking to friends and watching an online video. She acknowledged that with her brother, the two spent $20,000 on plants and supplies and did so to take care of their parents. She told probation they had no other place but in their rented house to grow the marijuana. Chen also said "she knew it was ‘totally wrong and illegal,[’] but her family needed money because their family restaurant was hurting financially." Chen expressed willingness to comply with any term and condition imposed by the court and hopefulness she would not have to serve jail time.

In September 2012, the trial court suspended imposition of sentence and granted Chen three years' probation. Chen was ordered to serve a 120-day term in jail; to pay various fines, fees, and restitution; and to abide by terms and conditions of probation. At the sentencing hearing, Chen acknowledged to the trial court she had reviewed all the probation conditions and accepted them.

In July 2017, Chen moved to vacate her plea and conviction under sections 1473.7 and 1016.5. She argued her trial counsel failed to properly investigate and advise her of the immigration consequences of her plea and she was prejudiced by her counsel's deficient representation.

In her declaration, Chen stated, "I was born on June 7, 1976 in Guangzhou, Guangdong, China.... [¶] ... I came to America with my mother, father, and brother in 1992 and am a Permanent Resident. We left China because my grandfather was [granted] his immigration petition for my father and the whole family. I have not been back to China and am afraid of what would happen if I were to return." With "her entire life ... in America," she did not know anyone in China. She further stated she was the primary caretaker for her 68-year-old mother and 67-year-old father. As the "main person" caring for her parents, she was concerned her parents would be unable to take care of themselves, since they were poor and had no other relatives in the United States. She added that her parents, who "[would] not survive China," could not return to China because of their advanced age. If deported, she expected to never see her parents again.

According to her declaration, she moved to Vallejo from American Canyon in late 2011 and never returned to the American Canyon house. She explained, "I had no knowledge or information about a marijuana grow operation that was conducted at our old residence .... I did not know anything about it." After her arrest, her brother told her he had arranged the marijuana operation, and she repeated she "knew nothing about it."

Chen described her interactions with her counsel, James McEntee. She said McEntee told her she would lose at trial and would go to jail unless she took a plea bargain. Chen stated she "was mostly concerned about being away from [her] family and being in jail." She added, "My lawyer did not mention or discuss the immigration consequences of my plea. I was not aware that by entering that plea, I would be subject to deportation and removal and not being allowed back to America. Had I known of the severe immigration consequences of the plea bargain, I would have opted for trial even with the risk of incarceration. I would not have accepted my attorney's recommendation to plea to a violation of Health and Safety Code [section] 11358 had I known it would lead to deportation with no ability to return to the United States."

Chen's brother also provided a supporting declaration stating that after his family moved out of their American Canyon house, he began the marijuana operation there. He added, "The marijuana grow operation was completely my doing and my sister ... did not know anything about it. She had nothing to do with it."

The People's opposition to Chen's motion included a declaration from the district attorney who handled Chen's case. He declared that multiple neighbors identified Chen at the American Canyon house approximately one week before the fire. A search of Chen's residence also yielded evidence of "handwritten marijuana information including price lists, in [her] room." He declared he would not have agreed to any lesser charges.

At the hearing on the motion, the prosecutor called Chen's trial counsel, James McEntee, as a witness. McEntee recalled representing Chen in 2012 and reviewed his file for her case. He testified that he used an interpreter to consult with Chen and learned she was not a United States citizen but a permanent legal resident. Accordingly, McEntee attempted to negotiate a disposition with the district attorney that "would be less harmful to [Chen] in that it might not have drastic adverse immigration consequences," but the district attorney would not agree to anything other than one of the two charged felonies. McEntee also consulted Chen about her immigration status. Asked whether he informed Chen of potential immigration consequences, McEntee stated: "I told her that the plea ... had the potential to cause her to be removed from the country and denied reentry. I told her that the District Attorney would not agree to anything other than one of the two felonies that was [sic ] alleged in the Complaint." He said he had five conversations with Chen about the plea.

Chen did not testify at the hearing, and her counsel called no witnesses.

The trial court denied the motion, finding defendant had not provided a sufficient basis to vacate the conviction under either Penal Code section 1016.5 or Penal Code section 1473.7. Chen now appeals from that order.

DISCUSSION

Section 1473.7, which took effect January 1, 2017, authorizes a person 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), added by Stats. 2016, ch. 739, § 1, West's Cal. Legis. Service, pp. 5136–5137.) Section 1473.7 was designed to address the absence under California law of any means for a person who is no longer in criminal custody to challenge a conviction on the grounds they could not meaningfully understand its actual or potential immigration consequences. (Sen. Com. on Pub. Safety, Purpose of Assem. Bill No. 813 (2015–2016 Reg. Sess.) May 10, 2016, p. 1.)

While this appeal was pending, the Legislature amended the statute to expressly make clear: "A finding of legal invalidity may, but need not, include a finding of ineffective assistance of co...