People v. Diaz
| Decision Date | 09 March 2022 |
| Docket Number | B307726 |
| Citation | 291 Cal.Rptr.3d 238,76 Cal.App.5th 102 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Moises Fernando DIAZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Susan Morrow Maxwell, Austin, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill and Steven D. Matthews, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Moises Fernando Diaz appeals the trial court's July 16, 2020 order denying his motion to vacate his 1989 conviction by no contest plea to second degree robbery ( Pen. Code, § 211 )1 pursuant to section 1473.7, subdivision (a)(1), on the basis that he did not understand the immigration consequences of the plea. We affirm the trial court's order.
On March 11, 1989, Diaz and two other men robbed the victim, who was working alone as a cashier at a Shell gasoline station. The men lured the victim to the restroom where Diaz held a knife to his neck while the other men stole cash and items from the store. Just after the robbery, Diaz was arrested nearby with a knife in his pocket that had blood on the tip. The victim identified Diaz as the person who held a knife to his neck, and identified the knife as the weapon that Diaz held to his neck during the robbery.
At the plea colloquy on May 22, 1989, defense counsel relayed to the court that Diaz had "two requests." First, Diaz wanted to counter the prosecution's offer of three years in prison, and "would be willing to plead to two years if he could get a forthwith [that day]." Second, if the counter-offer was not accepted, Diaz wanted to have bail reduced.
The trial court discussed the plea with Diaz and his counsel:
Diaz inquired regarding the number of custody credits he had accrued. He next asked the court if the $17 that he had in his wallet when he was arrested would be returned to him. The court discussed the matter of the procedure that must be followed to have the $17 returned to Diaz with counsel at length. Diaz stated,
The court returned to the question of Diaz's plea, and whether he wished to plead no contest for a total sentence of three years. Diaz stated, "I will take the three years, but I want it forthwith." The trial court informed Diaz it would sentence him that day, but that it would still take two to three weeks for Diaz to be moved to the Department of Corrections. Diaz conferred with his counsel sotto voice. He then responded that he did not want a "forthwith." Diaz said that he would
The prosecutor next informed Diaz of his constitutional rights, which Diaz stated that he understood and wished to waive.
The prosecutor advised Diaz:
The prosecutor asked if Diaz had been provided adequate time to speak with his attorney, and Diaz stated that he had.
Diaz pleaded no contest to second degree robbery ( § 211 ), with personal use of a deadly weapon ( § 12022, subd. (d) ). Diaz stipulated that the transcript of the preliminary hearing would serve as a factual basis for entry of the plea and admission of the enhancement.
Diaz was sentenced to three years in prison, consisting of the low term of two years for the robbery and one year for the personal use of a weapon enhancement.
At the sentencing hearing on June 6, 1989, the trial court initially sentenced Diaz to the mid-term of three years, plus a stayed one-year term for the weapon use enhancement. Diaz conferred with his attorney sotto voice. Diaz's attorney then stated that Diaz's plea was for the low term of two years, plus one year for the weapon use enhancement. The trial court responded that it was happy to impose either sentence, but that Diaz was "going to do three years either way." Diaz stated that he wanted "it to be stated that it is the low term." The trial court set aside its prior pronouncement and resentenced Diaz as requested. The trial court stated that if Diaz wished to withdraw his plea, the court would permit him to do so, "[a]nd then if you are convicted, you can do six [years]." Diaz asked if the court could run the one-year sentence concurrently with the two-year sentence. The trial court responded, "no."
On May 21, 2020, Diaz moved to withdraw his plea pursuant to section 1473.7, on the basis that he was not adequately advised of, and did not understand, the immigration consequences of his plea. The motion expressly did not allege ineffective assistance of counsel.
The motion averred that Diaz was a citizen of Mexico. He was brought to the United States by his mother in 1976, when he was six years old. He became a temporary resident of the United States on September 21, 1987, at the age of 16. At the time his plea was taken, Diaz was 18 years old and held a temporary resident card. Diaz's temporary resident status expired on April 18, 1990, while he was in prison. Diaz had an appointment to obtain his "green card" (permanent resident status) scheduled at the time of the plea, but missed the appointment because he was incarcerated.
At the May 22, 1989 plea hearing, Diaz was represented by Deputy Public Defender Norman Katsuo Tanaka, who is now deceased. Diaz declared that Tanaka never discussed the potential immigration consequences of his plea with him or told him that he was pleading to an aggravated felony that would subject him to mandatory deportation, exclusion, and permanent ineligibility for citizenship. Tanaka did not ask where he was born or inquire regarding Diaz's immigration status. Diaz would not have knowingly accepted a plea that jeopardized his ability to legally remain in the United States with his mother.
Although he was advised that the plea could have adverse immigration consequences if he was not a citizen, Diaz did not believe that the consequences would apply to him because he was not an undocumented immigrant. He believed that the advisement only applied to people who were in the country illegally.
As a result of pleading no contest to the robbery, Diaz was classified as an "aggravated felon." Diaz's conviction of an aggravated felony rendered him permanently deportable, excludable, and ineligible for citizenship in the United States. When he was processed in prison, immigration officials advised him that although he had been convicted of a deportable offense, which also caused him to lose his temporary resident status, he would not be deported because he had been in the United States since childhood.
Diaz was not deported after he served his sentence, but was instead returned to the community. Diaz was convicted of misdemeanor driving under the influence (DUI) three times. In 1993, after he was arrested for driving under the influence a fourth time, he was convicted of felony DUI and sentenced to a term of 16 months in prison. Immigration officials advised Diaz that, although he could be deported on the basis of the robbery conviction or on the basis of the felony DUI conviction, he would not be deported because he came to the United States as a child. Diaz was released into the community after he served his sentence.
In 1995, Diaz moved to Oklahoma for a "fresh start." In Oklahoma, he was employed consistently and started a family.
In 2013, Diaz was deported on the basis of his robbery conviction, but he illegally re-entered the United States within six months to care for his mother, who was ill. Diaz's mother died on August 25, 2014. Diaz remained in the United States after his mother's death. He started his own business in Oklahoma and purchased multiple properties, which he managed.
On May 12, 2020, Diaz was taken into custody by agents of the Immigration and Customs Enforcement Agency in Oklahoma. At the time he filed the motion, Diaz was facing imminent deportation. However, if the trial court granted the motion and vacated Diaz's plea, his immigration attorney could file a motion to reconsider in immigration court seeking rescission of his 2013 Administrative Removal Order. If Diaz no longer had an aggravated felony on his record, his attorney would have a chance to argue for legal readmission before an immigration judge.
In the motion to vacate, Diaz argued that if either (1) his attorney had advised him that by making the plea, he would become an aggravated felon subject to mandatory devastating immigration consequences, or (2) he had understood that, as a temporary resident, he could be subject to these consequences, he would not have accepted the plea bargain. Instead, Diaz would have asked his attorney to seek conviction under a different charge with a sentence of 364 days in...
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...he was a citizen. In this regard, respondent's reliance on People v. Diaz (2022) 76 Cal.App.5th 102, review granted June 15, 2022, S274129 (Diaz) is misplaced. Diaz was following a no contest plea to one count of robbery in 1989. (Id. at pp. 104-105.) In Diaz, the appellate court affirmed t......
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... ... so had called the United States home for approximately 55 ... years. He went to school and started a family in California, ... and his family members, including his United States citizen ... minor children, are in the United States"]; People ... v. Diaz ( 2022) 76 Cal.App.5th 102, 115, review granted ... June 15, 2022, S274129 [separating the defendant from his ... mother and from the country where he had spent two-thirds of ... his life were "compelling reasons" for him to wish ... to remain legally in the United States].) ... ...