People v. Ekwueme, H030655 (Cal. App. 3/26/2009)

• Decision Date: 26 March 2009
• Docket Number: H030655.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. EMEKA OBIORA EKWUEME et al., Defendants and Appellants.
• Court: California Court of Appeals

Page 1

THE PEOPLE, Plaintiff and Respondent, v. EMEKA OBIORA EKWUEME et al., Defendants and Appellants.

H030655.

Court of Appeals of California, Sixth Appellate District

March 26, 2009

Not to be Published in Official Reports

Appeal from the Santa Clara County, Super. Ct. No. CC317591.

RUSHING, P.J.

I. Statement of the Case

The Santa Clara County District Attorney charged defendants Emeka Obiora Ekwueme, Richard Anthony Meyer, and Benedine Ngozika Okafor with eight counts of grand theft; one count of embezzlement, and one count of conspiracy to commit grand theft and further alleged that the offenses involved excessive taking of more than $500,000. (Pen. Code, §§ 484-487, subd. (a), 368, subd. (d), 182, subd. (a)(1), & 186.11, subd. (a)(1).)¹

Prior to trial, all defendants reached negotiated settlements. Ekwueme pleaded no contest to one count of grand theft and two new charges of false personation (§529, subd. (3)), the remaining charges and the excessive taking allegation were dismissed, and he was placed on probation with the understanding that he would serve no more than 364 days in jail and on condition that he pay restitution to the victim. Meyer pleaded no contest to one count of grand theft, the remaining charges and the excessive taking allegation were dismissed, and he was placed on probation with the understanding that he would serve no more than six months in jail and on condition he pay restitution. Okafor pleaded no contest to one count of false personation, the remaining charges and the excessive taking allegation were dismissed, and she was placed on probation on condition she pay restitution.

All defendants filed timely notices of appeal. Ekwueme claims his attorney rendered ineffective assistance in failing to adequately advise him concerning the immigration consequences of his plea.² Meyer claims the court erred in ordering him to pay restitution. Okafur filed a brief in accordance with People v. Wende (1979) 25 Cal.3d 436 that raises no issues.

We affirm the judgments against all three defendants.

II. Background

In 1999, the elderly victim, Marilyn Strohl, had a hip operation, and Okafor was assigned as her home healthcare worker. Okafor introduced Strohl to Ekwueme. Between 1999 and 2000, Ekwueme induced Strohl to refinance her house twice and then sell it. Meyer acted as the loan agent or real estate agent in these transactions. Thereafter, Ekwueme converted most of money from the refinancing and sale and the money in Strohl's IRA account. In 2001, the Santa Clara County Public Guardian (Public Guardian) was appointed as conservator for Strohl and her estate. The conservator suspected financial wrongdoing by defendants, investigated, and then reported her findings to the district attorney. She also initiated a lawsuit against numerous defendants, including the three criminal defendants, to recover money that Strohl had lost. Strohl settled the lawsuit with numerous defendants, including Meyer. Thereafter, the three defendants entered their pleas in this case, the court dismissed the remaining charges, placed defendants on probation in accordance with the plea bargain, and imposed victim restitution as a condition of probation.

III. Ekwueme's Appeal

Ekwueme contends that his attorney misadvised him about the immigration consequences of his plea. Thus, he claims that he was denied effective assistance of counsel, and his plea was not knowing, intelligent, and voluntary. Ekwueme asserts that counsel erroneously told him that a conviction for grand theft would not be grounds to deport him if the sentence was less than one year and assured him that the plea bargain had been structured to avoid mandatory deportation.³ He further asserts that after entering his plea, he learned that his grand theft conviction rendered him subject to mandatory deportation.

The Guilty Plea

At a combined change of plea hearing for all three defendants, the court told Ekwueme that if he did not understand anything or had a question about anything, he could discuss it with counsel and further warned him that it would be difficult to withdraw his plea later. Counsel reported that they had discussed at length the immigration consequences of the plea, and Ekwueme said that he understood what he was doing, had had enough time to talk to counsel about his case, and was satisfied with his advice. Counsel confirmed that he was satisfied with their discussion.

The court then explained the rights Ekwueme would have to waive and the consequences of his plea. Among other things, the court advised him that "[i]f you are not a citizen of the United States, a plea of no contest will result in deportation, exclusion form admission to the U.S., and denial of naturalization. Do you understand? Mr. Ekwueme?" (Emphasis added.) Ekwueme said he did.

The court continued, "Now, as for all three of you [defendants], none of us knows what the immigration consequences will be. There is no way of knowing that, because it's not handled out of this court. And we don't know what immigration is going to do. Are you pleading no contest regardless of any immigration consequences that might occur? Mr. Ekwueme? (Emphasis added.) Counsel consulted with Ekwueme and then said, "For the record, Judge, the plea agreement that we have entered into provides for two counts of section 529 subsection (3) [false personation], which we understand . . . is not a crime of moral turpitude, and it's not an aggravated felony. It is a wobbling felony. [¶] The third count of grand theft is a crime of moral turpitude; but if we understand from immigration guidelines, if the actual penalty or sentence is 364 days or less, that would not give them grounds to deport him." Ekwueme concurred.

Counsel further explained that "part of the reason he's entering into this plea is his belief that that is what the guidelines of the immigration are. However, I made it clear to him that I'm not an immigration lawyer. [¶] I've also made it clear to him I have no power over what the Department of Naturalization and Immigration does. And this is to advise the court and [Ekwueme] that he does have an action currently pending with the Department of Immigration and Naturalization, where they are seeking to deport him. We have seen to it as much as we can based on the guidelines we have been provided not to give them additional grounds to deport him, but we can't make any guarantee that they would not take this case into consideration. It's just that the felony plea that he's entering into, we understand, would not give them grounds to deport him on their own. And that's the best statement I can make to you." Ekwueme said he understood that neither counsel nor the court could assure him with certainty that his plea would not in some way be used to deport him.

Counsel continued, "We only tell you what we have read, though I'm not a specialist in immigration law at all, and provide you with that information; but the ultimate choice is yours." Again, Ekwueme said he understood and still desired to enter the plea.

Seeking clarification, the court asked whether avoiding deportation was a condition of the plea, and Ekwueme said it was not. The court then reiterated that if he was not a citizen, the plea would result in deportation. After consulting with Ekwueme, counsel read the advisement provided in section 1016.5: "`If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion form admission to the United States, or denial of naturalization . . . .'" Counsel noted that although the statutory advisement says "may" not "will," "as a matter of being safe, we can't assure you, [Ekwueme], in any sense what the Department of Immigration Bureau will do in this matter." Again Ekwueme said he understood.

The attorney for Okafor added, "The burden falls on defense counsel to in depth discuss with their client[s] the anticipated or likely consequence of this plea. And we have researched this issue based upon information provided by the Immigrant Legal Resource Center publication. And it would appear from those guideline that [Ekwueme's counsel's] statement is accurate." Counsel added that the guidelines were always changing, there was already a deportation action pending against Ekwueme based on unrelated conduct, and there was no way to predict the outcome. However, structuring the plea to avoid deportation was an inducement for the plea.

The court then directly asked whether Ekwueme understood that "[p]leading no contest to these charges is grounds for deportation . . . ." (Emphasis added.) Ekwueme said he understood. The court again asked, "Are you entering this plea regardless of what the immigration consequences, which are unknown at this time, might be?" (Emphasis added.) Ekwueme again said he was and that he was pleading freely and voluntarily.

The Motion to Withdraw

Several months later, Ekwueme filed a motion to withdraw his plea. He asserted that after entering his plea, he "believed that [his] conviction would not have immigration consequences" but later learned that his plea rendered him subject to mandatory deportation. He further asserted that although the court had advised him that his plea "might" have immigration consequences, his attorney advised him that it would not have any consequences because he would not serve more than a year in jail. Lastly, he asserted that if he had known that his plea "could" have resulted in his deportation, he would not have entered it.

The trial court did not find Ekwueme's declaration credible and denied the motion. The court noted that it had expressly advised Ekwueme that the plea would result in his deportation and that the plea was grounds for deportation; defense counsel advised him that the plea may result in deportation; Ekwueme understood that no one knew what immigration authorities would do; neither counsel nor the court...