People v. Espinoza, E068282

• Decision Date: 28 September 2018
• Docket Number: E068282
• Citation: 27 Cal.App.5th 908,238 Cal.Rptr.3d 619
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Edgar ESPINOZA, Defendant and Appellant.

27 Cal.App.5th 908

238 Cal.Rptr.3d 619

The PEOPLE, Plaintiff and Respondent,

v.Edgar ESPINOZA, Defendant and Appellant.

E068282

Court of Appeal, Fourth District, Division 2, California.

Filed September 28, 2018

Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Sacramento, Julie L. Garland, Assistant Attorney General, San Diego, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MILLER, J.

FACTUAL AND PROCEDURAL HISTORY

A. Procedural History

On October 29, 2012, a complaint charged defendant and appellant Edgar Espinoza with one count of possession of methamphetamine for sale under Health and Safety Code section 11378 ; on November 6, 2012, defendant pled guilty to the charge. The court suspended imposition of defendant's sentence and placed him on three years of formal probation with 220 days in local custody.

On May 3, 2013, defendant filed a motion to withdraw his guilty plea under Penal Code section 1018¹ claiming that he was not advised of the immigration consequences of his plea. On October 17, 2013, both defendant and defense counsel, who had represented defendant at his plea negotiations, testified at the section 1018 motion. The trial court denied the motion.

On July 8, 2014, defendant admitted a probation violation and was sentenced to 16 months in county jail.

On January 23, 2017, defendant filed a motion to withdraw his guilty plea under the newly-enacted section 1473.7. In his motion, defendant represented that he had been "placed into removal proceedings." In support of his motion, defendant included a notice to appear in removal proceedings. On March 20, 2017, the trial court denied defendant's motion.

On May 5, 2017, defendant filed a timely notice of appeal.²

B. Factual History

The facts underlying defendant's conviction under section 11378 are not relevant to this appeal as the appeal challenges the trial court's denial of defendant's motion to withdraw his guilty plea on the grounds that he was not sufficiently advised of the immigration consequences of his plea.

DISCUSSION

Defendant contends that the trial court abused its discretion in denying his motion to vacate his conviction and set aside his guilty plea under section 1473.7. The People contend that the trial court properly denied defendant's motion because: (1) section 1473.7 "does not retroactively apply" to defendant; and (2) defendant "was well aware of the immigration consequences of his guilty plea." For the reasons set forth below, we hold that section 1473.7 does apply in this case, and that the trial court erred in denying defendant's motion.

A. Legal Background

Section 1473.7 provides: "A person no longer imprisoned or restrained may prosecute a motion to vacate a conviction or sentence" for one of two reasons, including that "[t]he conviction or sentence is legally invalid due to a 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).) The motion must be made with "reasonable diligence" after the party receives notice of pending immigration proceedings or a removal order. ( § 1473.7, subd. (b).) The court must hold a hearing on the motion, and if the moving party establishes by a preponderance of the evidence that he or she is entitled to relief, the court must allow the person to withdraw his or her plea. ( § 1473.7, subd. (e).)

The People contend that section 1473.7 is not retroactive; thus, it cannot apply to defendant, who pled guilty and whose deportation proceedings started before section 1473.7 became effective. In a recent case, People v. Perez (2018) 19 Cal.App.5th 818, 228 Cal.Rptr.3d 95 ( Perez ), the Fourth Appellate District, Division One, held that the language of section 1473.7 "indicates that it can be applied retroactively if the moving party satisfies the requirements of the statute." ( Id. at p. 827, 228 Cal.Rptr.3d 95.) We agree with our colleagues.

In support of its argument, the People compare section 1473.7 with sections 1016.5, 1203.4a, and 1473.6. The People contend those sections indicate the Legislature understands how to explicitly state when a statute applies retroactively. Because section 1473.7 does not contain analogous language, the People maintain the Legislature did not intend it to apply retroactively. We disagree and do not find the specific language of sections 1016.5, 1203.4a, and 1473.6 helpful in our analysis here.

Section 1016.5, subdivision (c), specifically states that the statute is not retroactive: "With respect to pleas accepted prior to January 1, 1978, it is not the intent of the Legislature that a court's failure to provide the advisement required by subdivision (a) of Section 1016.5 should require the vacation of judgment and withdrawal of the plea or constitute grounds for finding a prior conviction invalid. Nothing in this section, however, shall be deemed to inhibit a court, in the sound exercise of its discretion, from vacating a judgment and permitting a defendant to withdraw a plea." Section 1203.4a, which requires a trial court to dismiss misdemeanor or infraction convictions in certain circumstances, specifically states that it applies to convictions occurring before and after the statute's effective date. (§ 1203.4a, subd. (d).) And, section 1473.6 allows a defendant to move to vacate a judgment based on newly discovered evidence of fraud, false testimony, or misconduct by a government official in connection with the underlying case. (§ 1473.6, subd. (a)(1), (2) & (3).) The statute includes a time limit by which a defendant can seek relief under the statute. (See § 1473.6, subd. (d). [within one year of the date the new evidence was or reasonably could have been discovered or the effective date of the statute, whichever is later].) "These statutes do not indicate that the Legislature uses a specific type of language when decreeing a statute is retroactive. Indeed, the statutes underscore the opposite conclusion. The Legislature uses no uniform language, but instead, offers clarification as it sees fit." ( Perez , supra , 19 Cal.App.5th at p. 825, 228 Cal.Rptr.3d 95.)

"Unlike section 1016.5, section 1473.7 does not contain an explicit subdivision stating the statute is not to be applied retroactively. ( § 1016.5, subd. (c).) That said, there is no specific indication in section 1473.7 that it is to be applied retroactively like subdivision (d) of section 1203.4a. Instead, section 1473.7 is somewhat like section 1473.6 in that both statutes contain a timeliness provision. (Compare § 1473.7, subds. (b)(1) & (2), (c) with 1473.6, subd. (d)(1) & (2).) Thus, on a plain reading of the statute, it appears a moving party can seek relief under it if he or she satisfies the statute's three requirements." ( Perez , supra , 19 Cal.App.5th at pp. 826-827, 228 Cal.Rptr.3d 95.)

The next step in the analysis is whether defendant satisfies the required elements to bring a motion under section 1473.7. There are three requirements: "First, the moving party can no longer be imprisoned or restrained. ( § 1473.7, subd. (a).)" ( Perez , supra , 19 Cal.App.5th at p. 826, 228 Cal.Rptr.3d 95.) "Second, the statute provides two reasons to challenge a conviction or sentence: (a) 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) ); or (b) newly discovered evidence of actual innocence ( § 1473.7, subd. (a)(2) )." ( Ibid . ) Then, finally, the motion must be timely. ( Ibid. )

Here, defendant has satisfied the first requirement—he is no longer in custody. Moreover, just three weeks after section 1473.7 became effective, on January 23, 2017, defendant filed a motion to set aside his plea under section 1473.7. Therefore, the motion is timely.

B. Analysis

The issue, therefore, is whether prejudicial error damaged defendant's ability to meaningfully understand or accept the actual or potential adverse immigration consequences of his guilty plea. Defendant contends that the trial court erred in denying his section 1473.7 motion to vacate his conviction because he made a sufficient showing that his trial counsel's performance was deficient and that he was prejudiced by the deficiency. We agree.

"Ineffective assistance of counsel that damages a defendant's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a guilty plea, if established by a preponderance of the evidence, is the type of error that entitles the defendant to relief under section 1473.7. [Citation.] To establish ineffective assistance of counsel, a defendant must demonstrate that his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that he was prejudiced by the performance." ( People v. Ogunmowo (2018) 23 Cal.App.5th 67, 75, 232 Cal.Rptr.3d 529.)

In this case, on November 6, 2012, defendant pled guilty to one count of willful and unlawful possession of methamphetamine for sale under Health and Safety Code section 11378. Prior to entering his plea, defendant acknowledged to the court that he signed the plea form and that it had been fully explained to him. He was advised by the trial court and the Tahl form³ that, as a noncitizen, "this conviction may have the consequences of deportation, exclusion from admission to the U.S., or denial of naturalization pursuant to the laws of the United States." (Italics & boldface added.)

In his section 1473.7 motion, defendant argued that his trial counsel rendered ineffective assistance of counsel (IAC) because counsel failed to properly advise defendant of immigration consequences and failed...