People v. Lopez

• Decision Date: 26 September 2022
• Docket Number: B315320
• Parties: THE PEOPLE, Plaintiff and Respondent, v. MIGUEL LOPEZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. MIGUEL LOPEZ, Defendant and Appellant.

B315320

California Court of Appeals, Second District, Second Division

September 26, 2022

APPEAL from an order of the Superior Court of Los Angeles County. No. LA030413 Martin Larry Herscovitz, Judge. Reversed and remanded with directions.

Christopher Lionel Haberman, 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, Deputy Attorneys General, for Plaintiff and Respondent.

LUI P. J.

Miguel Lopez appeals the denial of his motion to withdraw his plea and vacate his conviction pursuant to Penal Code ^[1] section 1473.7, subdivision (a).

The Legislature has declared that section 1473.7, as amended by Assembly Bill No. 2867, "shall be interpreted in the interests of justice and consistent with the findings and declarations made in Section 1016.2 of the Penal Code." (Stats 2018, ch. 825, § 1, subd. (c).) Among other legislative findings and declarations, section 1016.2 provides:

"(g) The immigration consequences of criminal convictions have a particularly strong impact in California. One out of every four persons living in the state is foreign-born. One out of every two children lives in a household headed by at least one foreign-born person. The majority of these children are United States citizens. It is estimated that 50,000 parents of California United States citizen children were deported in a little over two years. Once a person is deported especially after a criminal conviction, it is extremely unlikely that he or she ever is permitted to return.

"(h) It is the intent of the Legislature to codify Padilla v Kentucky^[[2] and related California case law and to encourage the growth of such case law in furtherance of justice and the findings and declarations of this section."

In People v. Vivar (2021) 11 Cal.5th 510, 516 (Vivar), our Supreme Court elaborated on these findings:

"The population of the United States includes millions of immigrants who arrived as children, attended schools, and found work here. (See Department of Homeland Security v. Regents of Univ. of Cal. (2020) 591 U.S. ____ [207 L.Ed.2d 353, 140 S.Ct. 1891, 1932] (conc. &dis. opn. of Kavanaugh, J.).) Whether they become citizens or not, these immigrants' ties to our country are evident not only in their work and schooling, but in how they've formed attachments and families of their own. In contrast, what ties they once had to their country of birth-from which they may lack even memories-often slip away. So when long-standing noncitizen residents of this country are accused of committing a crime, the most devastating consequence may not be a prison sentence, but their removal and exclusion from the United States. (See People v. Martinez (2013) 57 Cal.4th 555, 563 (Martinez).) Because the prospect of deportation 'is an integral part,' and often even 'the most important part,' of a noncitizen defendant's calculus in responding to certain criminal charges (Padilla v. Kentucky (2010) 559 U.S. 356, 364 [176 L.Ed.2d 284, 130 S.Ct. 1473] (Padilla)), both the Legislature and the courts have sought to ensure these defendants receive clear and accurate advice about the impact of criminal convictions on their immigration status, along with effective remedies when such advice is deficient. (E.g., Pen. Code, §§ 1016.2 et seq., 1473.7; Jae Lee v. United States (2017) 582 U.S. ____[198 L.Ed.2d 476, 137 S.Ct. 1958] (Lee); Padilla, at p. 360; Martinez, at p. 559; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 798.)"

Against this backdrop, appellant contends that at the time of his plea, defense counsel failed to advise him that he would be subject to mandatory deportation and permanent exclusion from the United States as a consequence of pleading no contest to an aggravated felony under federal immigration law. As a result, appellant suffered prejudicial error which damaged his ability to meaningfully understand, defend against, and knowingly accept the actual adverse immigration consequences of the conviction and sentence resulting from his plea. Appellant maintains that because his claim of prejudicial error was supported by objective corroborative evidence, the superior court erroneously denied his motion to withdraw his plea and vacate his conviction.

We conclude appellant has demonstrated a reasonable probability that if he had been properly advised of the immigration consequences of his plea, he would not have pleaded no contest to an offense that would subject him to mandatory deportation from the United States. Accordingly, we reverse and remand with instructions to grant appellant's motion to withdraw his plea and vacate his conviction pursuant to section 1473.7, subdivision (e).

FACTUAL AND PROCEDURAL BACKGROUND

1. The charged offenses^[3]

Between December 22, 1997, and May 20, 1998, appellant and codefendant Gustavo Montoya took or attempted to take money from four businesses by threatening the employees with what appeared to be a handgun. The total estimated loss came to $946.

Upon his arrest, Montoya provided officers with an air pellet gun-a replica of a .45-caliber semiautomatic handgun- which he said was the weapon used in the crimes. Montoya identified appellant as the driver of the getaway car. Appellant admitted the air gun belonged to him.

Appellant and Montoya were charged by information with four counts of second degree robbery (§ 211, counts 1-3, 5) and one count of attempted second degree robbery (§§ 664/211, count 4).

2. The plea

At the arraignment on the charges on August 4, 1998, the prosecution offered a plea deal pursuant to which appellant would plead to one count of second degree robbery and receive a maximum sentence of two years in state prison. Appellant accepted the offer.

The prosecutor advised appellant that the maximum term on all the charges was eight years eight months in state prison, but under the plea agreement, appellant "could receive anywhere up to two years in state prison." With respect to the immigration consequences of the conviction, the prosecutor stated: "Also, if you are not a citizen of the United States, your conviction may result in your being deported, denied naturalization or denied readmission if you leave the country." When asked if he understood, appellant answered, "Yes."

Appellant then pleaded no contest to one count of second degree robbery. Appellant's attorney joined in the waivers, concurred in the plea, and stipulated to a factual basis for the plea on appellant's behalf, adding "that this was entered as a result of a plea bargain the maximum two year term and we both believe that it is in the best interest of [appellant] to enter this plea bargain and not necessarily an admission of culpability or liability, that this case is to be controlled by People against West.^[[4]" The trial court found appellant had knowingly, intelligently and effectively waived his constitutional rights, and freely and voluntarily entered into the plea. At the request of defense counsel, sentencing was put over to a later date to give appellant an opportunity to prepare and present factors in mitigation.

3. Sentencing

According to the preconviction probation report, appellant was 22 years old at the time of the offenses. He had no prior criminal record and had a stable employment and residential history over the preceding five years. The probation officer noted that these crimes appeared to be out of character for appellant, but nevertheless recommended that probation be denied.

The probation and sentencing hearing took place on August 31, 1998. The court sentenced appellant to state prison for the low term of two years on count 1, and dismissed counts 2 through 5 in furtherance of justice.

4. The motion to vacate the conviction^[5]

Appellant filed his motion to vacate the conviction pursuant to section 1473.7, subdivision (a)(1) on July 12, 2021. In support of the motion, appellant submitted a declaration signed under penalty of perjury along with several exhibits.

Appellant's declaration

In his declaration appellant averred:

Appellant came to the United States when he was 13 years old and lived in the United States continuously until he was deported in August 2016. He completed middle school and high school here and was a lawful permanent resident of the United States. Having grown up in the United States, appellant considered himself an American.

In court proceedings on August 4, 1998, appellant entered a plea of no contest to one count of second degree robbery in People v. Miguel Lopez, Los Angeles Superior Court case No. LA030413-02. Appellant was 22 years old at the time and had no prior experience with the criminal justice system: He had never been arrested, much less convicted of any crime before. He had no prior knowledge of the immigration consequences of a conviction.

At the time he entered his plea, appellant was not advised that a conviction for second degree robbery would constitute an aggravated felony under federal immigration law. Appellant was unaware that as a consequence of this conviction, he would be subject to mandatory deportation and permanently ineligible for lawful permanent residency in the United States.

Although he received a general advisement during the plea proceedings that immigration consequences could occur, appellant incorrectly presumed that he would not suffer any adverse immigration consequences because of his status as a lawful permanent resident.

While appellant was in custody, his family retained attorney David Kwan to represent him. Appellant...