People v. Cruz-Lopez

• Court: California Court of Appeals
• Writing for the Court: Dondero, J.
• Citation: People v. Cruz-Lopez, 27 Cal.App.5th 212, 237 Cal.Rptr.3d 873 (Cal. App. 2018)
• Decision Date: 21 August 2018
• Docket Number: A152348
• Parties: The PEOPLE, Plaintiff and Respondent, v. Luis Ariel CRUZ-LOPEZ, Defendant and Appellant.

27 Cal.App.5th 212

237 Cal.Rptr.3d 873

The PEOPLE, Plaintiff and Respondent,

v.Luis Ariel CRUZ-LOPEZ, Defendant and Appellant.

A152348

Court of Appeal, First District, Division 1, California.

Filed August 21, 2018

Jennifer M. Sheetz, under appointment of the Court of Appeal under the First District Appellate Project, Independent Case System, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant Attorneys General, Lisa Ashley Ott, Sharon Wooden, and Moona Nandi, Deputy Attorneys General, for Plaintiff and Respondent.

Dondero, J.

INTRODUCTION

On March 30, 2017, appellant filed a motion to vacate revocation of probation pursuant to Penal Code ¹ section 1473.7, subdivision (a)(1). In the motion, appellant raised the issue of ineffective assistance of counsel. He claims he was not properly advised by his trial counsel regarding the aggravated felony immigration consequences of his admission and sentence. Also, he argues his defense attorney was ignorant of the immigration consequences of his probation sentence, execution of sentence suspended (ESS); he should have requested a probation sentence, imposition of sentence suspended (ISS), as part of the deal. The trial court denied the motion on June 30, 2017. A timely appeal was filed on August 29, 2017. We affirm.

STATEMENT OF FACTS

Marin County Superior Court Case No. SC186143A (Aggravated Assault Felony Plea)

On September 15, 2013, E.R. was eating a meal in a restaurant in Novato. He was approached by appellant, who entered the restaurant and demanded E.R. follow him outside. E.R. knew appellant and reluctantly complied with the directive. When the two men were outside, appellant proceeded to hit E.R. in the head and then kicked him. He may have used a glass bottle when he struck E.R. in the head. When the police arrived, they saw the two men struggling on the sidewalk. E.R.’s left ear was partially severed.

Witnesses in the restaurant reported to police that E.R. was eating a meal in the restaurant when appellant entered and demanded he step outside. A video of the incident was recovered from the surveillance camera in the restaurant. The police watched the video and determined it showed E.R. leaving the restaurant with appellant. Appellant then struck E.R. in the head with a bottle. No provocative acts were indicated on the part of E.R.² The victim believed appellant thought he was a Norteño member because appellant called him a "Chapete," which is a derogatory term Sureños label members of the Norteños.

Marin County Superior Court Case No. SC185751A

On August 9, 2013, appellant was stopped for a traffic violation in Novato. The officer smelled marijuana emanating from the car appellant was driving. Appellant admitted to the use of marijuana. The officer found a bottle of 30 Vicodin pills in the driver's side door.

Marin County Superior Court Case No. CR185379A

On June 26, 2013, Novato police observed appellant, along with two companions, yelling at a passing motorist. The officer knew appellant from prior contacts and believed he associated with the Sureños street gang. The officer observed appellant then engage in vehicle code violations as he proceeded to drive his car and a stop was made. The police found a baseball bat protruding from under the passenger's seat. Appellant confirmed it was his. He acknowledged he had a "lot of friends" who were Sureños.

Marin County Superior Court Case No. SC167808A

Prior to these incidents, appellant was convicted of receiving stolen property, a violation of section 496, subdivision (a). He sustained the conviction on September 30, 2010. He was placed on three years’ probation and received 60 days in jail. His probation was revoked and then reinstated in 2011.

As a result of the three new incidents identified above, the district attorney moved to revoke probation on September 26, 2013.

PROCEDURAL HISTORY OF THE CASE

On January 24, 2014, appellant pleaded guilty to a felony assault with a deadly weapon in No. 186143A. This felony was a strike. Several enhancements were stricken in exchange for the guilty plea. Appellant was sentenced to ISS, three years’ probation and a county jail term of 180 days. On the same day, appellant entered a plea of guilty to possession of a controlled substance in No. SC185751A, and a guilty plea to possession of a billy club in No. CR185379A. He also admitted the allegations in the motion to revoke probation in case No. SC167808A. The probation was terminated as unsuccessful.

When appellant entered his plea of guilty to the several separate crimes on January 24, 2014, the court engaged in its obligation to obtain Boykin-Tahl³ waivers. He was told that if he was not a citizen, a conviction of the offenses to which he was pleading guilty, or a combination of any of them, may result in deportation or exclusion from admission into the United States or the denial of naturalization. Appellant conceded he was worried about the immigration consequences of his pleas. "[M]y problem is I am a resident, so that's—and I am not a citizen, so that's my major worry." The trial court asked appellant's attorney whether he had investigated the immigration consequences that could arise from these guilty pleas. Counsel told the court he had advised appellant "there may well be adverse consequences, including deportation, removal and prevention from reentry." The trial judge told appellant any of the three results could take place in light of his pleas to these serious charges. The court went on to tell appellant: "But if you don't want to enter into these guilty pleas, you don't have to, but before I can accept them, I have to make sure you understand all these things that could happen to you, and be willing to go forward anyway." The court offered appellant additional time to review the consequences regarding immigration here. Appellant essentially responded he did not need more time.

Besides the conversation in court on the subject of immigration and guilty pleas, appellant was advised of the fact each guilty plea could have immigration consequences for him. In the plea form for each separate conviction, appellant placed his initials in a box that stated: "I understand that if I am not a citizen of the United States, my plea of GUILTY may have the consequences of deportation, exclusion from admission to the United States, and/or denial of naturalization or amnesty pursuant to the laws of the United States. I understand that Federal law provides that these consequences are mandatory for certain offenses." Also, appellant's counsel, the prosecutor, and the trial court signed off on each guilty plea form acknowledging appellant was fully aware of his rights and the consequences of the plea; and that this was done freely, voluntarily, and knowingly.

On July 9, 2014, the probation department filed a motion to revoke appellant's probation in case No. SC186143A. His probation was revoked on July 31, 2014, and a bench warrant was issued because appellant was absent. He surrendered on August 5, 2014. Probation was reinstated on the same terms and conditions, with the additional commitment by appellant to serve an additional 60 days in jail.

On October 9, 2014, the Department of Homeland Security placed an immigration removal hold on appellant based on his drug conviction in case No. SC185751A. He was granted cancellation of the removal hold on March 25, 2015, and released from Immigration and Customs Enforcement (ICE) custody.

On October 5, 2015, the district attorney filed a motion to revoke probation in case No. SC186143A because appellant was found in possession of methamphetamine for sale on September 23, 2015, as well as possession of marijuana, resisting arrest, and attempting to destroy evidence. He also refused to allow enforcement of a search condition, in violation of probation. Appellant denied the probation violation motion allegations. On December 15, 2015, appellant admitted the allegations in the revocation motion. He was sentenced to state prison for three years, the execution of the sentence was suspended (ESS) and he was placed on probation for five years.

The September 2015 arrest resulted in a new criminal case, Marin County Superior Court case No. SC194804, alleging the criminal offense of resisting arrest and the other offenses. Appellant pleaded guilty to resisting arrest, with the other offenses dismissed pursuant to section 1385. Probation was denied and appellant was sentenced to 360 days in the county jail.

On March 30, 2017, appellant filed a motion pursuant to section 1473.7, subdivision (a)(1) to vacate his admitting a violation of probation in case No. SC186143A. On June 30, 2017, the court denied the motion. In his motion, appellant claimed he did not recall discussing the potential immigration consequences of his plea in case No. 186143A. His reason for a lack of recall was appellant believed it was a misdemeanor plea. However, the plea form indicates the sentence could be four years, with his initials acknowledging that potential term as well as the felony enhancements being dismissed for his plea. If appellant had misunderstood the immigration consequences once on probation, he would have sought further modification.

Part of the motion under section 1473.7 was a declaration from Christopher Todd, an immigration attorney. In his statement, he affirmed that appellant's trial counsel did a good job handling this case. He thought it was significant that trial counsel contacted the Immigration Legal Resource Center on appellant's latest case, case No. SC194804. Todd argues trial counsel was not aware a state prison suspended sentence of three years, the sentence appellant faced due to the aggravated strike assault conviction, would be considered an aggravated felony in the eyes of the federal immigration authorities. This made appellant subject to removal.

At the hearing on June 7, 2017, regarding the section 1437.7 motion, Todd was a witness for ap...