People v. Novoa
| Citation | 246 Cal.Rptr.3d 254,34 Cal.App.5th 564 |
| Decision Date | 22 April 2019 |
| Docket Number | D074888 |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Appellant, v. Raul Benjamin NOVOA, Defendant and Respondent. |
Michael A. Ramos, District Attorney, and Brent J. Schultze, Deputy District Attorney, for Plaintiff and Appellant.
Anne Lai, for Defendant and Respondent.
In March 2003, Raul Benjamin Novoa pled guilty to possession of methamphetamine for sale ( Health & Saf. Code, § 11378 ). The trial court sentenced him to 180 days in county jail and three years' probation. In 2012, the United States began deportation proceedings against Novoa, which are continuing today.
In May 2017, Novoa moved to vacate his 2003 conviction per Penal Code1 section 1473.7. After a lengthy evidentiary hearing, the trial court granted Novoa's motion.
The People appeal, contending the trial court erred in (1) holding Novoa's trial counsel to a duty the law did not require and (2) finding Novoa suffered prejudice. In support of the People's position, they assert the superior court's factual findings were not supported by substantial evidence. Moreover, they argue laches prohibits Novoa's motion.
We conclude the People's arguments are without merit, and thus, we affirm.
The record of Novoa's guilty plea and the underlying circumstances of his offense are less than clear. There is no reporter's transcript of the hearing wherein Novoa pled guilty. The preliminary hearing transcript, police reports, and probation report present differing versions of Novoa's actions and statements leading to his arrest. Suffice it to say, Novoa was arrested on January 13, 2003, and charged with possession for sale of a controlled substance (methamphetamine) in violation of Health and Safety Code section 11378, possession of a deadly weapon (brass knuckles) in violation of section 12020, subdivision (a)(1), and vandalism-graffiti in violation of section 594, subdivision (b)(4).
On March 13, 2003, Novoa pled guilty to one count of possession for sale of a controlled substance as part of a plea agreement. Per that agreement, the district attorney agreed, in exchange for the guilty plea, that Novoa would be sentenced to 180 days in county jail, followed by three years' probation. In addition, the district attorney dismissed the remaining counts. As part of his guilty plea, Novoa signed a written change of plea form in which he, among other things, waived certain rights. The form also was signed by Novoa's trial counsel, Sean O'Connor.
As relevant here, the plea form contained a standard immigration advisal (paragraph 14). O'Connor modified paragraph 14 by crossing out the word "or" and handwriting the word "and" in its place and crossing out the word "may" and handwriting the word "will" in its place. The modified paragraph 14 read, "I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or and denial of naturalization may will result from a conviction of the offense(s) to which I plead guilty/nolo contendere (no contest)." In addition to Novoa signing the change of plea form, O'Connor signed it as well. In doing so, O'Connor acknowledged that he was Novoa's attorney, he personally read and explained the contents of the change of plea form to Novoa, he observed Novoa sign the form, and he concurred with Novoa's guilty plea.
The trial court sentenced Novoa consistent with the plea agreement.
On May 14, 2012, Novoa was convicted of being a felon in possession of a firearm (former § 12021, subd. (a)(1)). Based on that conviction,2 as well as the conviction in this case, deportation proceedings were initiated.
On May 19, 2017, Novoa moved, under section 1473.7, to vacate his 2003 conviction. He argued that he pled guilty at the insistence of his trial counsel, which was "disasterous [sic ] from an immigration law perspective." Novoa further alleged O'Connor did not explain the gravity of the plea and did not take any steps to defend against the immigration consequences of the conviction. In support of his position, Novoa maintained that there existed a "long line of California court cases establishing a Sixth Amendment duty on the part of defense counsel to (1) advise of the specific immigration consequences of a criminal conviction, and (2) defend against those consequences by attempting to negotiate an alternative disposition that would not carry such harmful consequences."
The People opposed the motion, asserting that, in 2003, a criminal defense attorney was not required to provide immigration advice to a client and the record established that Novoa knew or should have known that his conviction could have immigration consequences. The People also contended that even if O'Connor deficiently represented Novoa, Novoa was not prejudiced.
The superior court heard evidence in support of and in opposition to Novoa's motion. To this end, Novoa, O'Connor, Julie Wu (a law student at UC Irvine School of Law), Michael Mehr (an expert witness for Novoa), and Adelina Garcia (Novoa's mother) testified.
Novoa was born in Mexico but came to the United States when he was five or six years old. His mother, stepfather, and siblings live in the United States as well. Novoa became a lawful permanent resident of the United States through the Special Immigrant Juveniles program of the United States Citizenship and Immigration Services.
Novoa was living in foster care when he was arrested in 2003. He was 18 years old. He remembered appearing in court three or four times in connection with his 2003 arrest. He met O'Connor, his counsel, the second time he appeared in court. Novoa never met with O'Connor outside of court.
Novoa remembered two plea offers conveyed by O'Connor. The first was an offer to plead guilty in exchange for a prison sentence of two to three years. Novoa rejected this offer.
Regarding the plea offer Novoa did accept, Novoa recalled receiving that offer the third time he appeared in court. He observed O'Connor talking to the prosecutor for a few minutes and then walking over to Novoa to present him with the offer. At that time, O'Connor had the written "plea bargain in his hands." Upon presenting Novoa with the plea offer, O'Connor advised him that if he "didn't fucking sign the plea bargain that [he] would end up going to prison, and [O'Connor] would no longer help [him]." Novoa stated that O'Connor "used a pretty tough tone" and "looked a bit frustrated." Novoa explained that O'Connor was frustrated with him because he did not want to accept the offer. He did not want to "accept the sales charge." Novoa testified that O'Connor did not explain what impact pleading guilty would have on Novoa's immigration status. Novoa also stated that O'Connor did not discuss the possibility of pleading to a charge other than possession with the intent to sell to make it less likely that Novoa would be deported. Additionally, O'Connor did not talk to Novoa about any plea deals other than the two he conveyed from the prosecutor.
Novoa accepted the plea offer on the same day it was offered. Novoa stated that O'Connor did not give him any instructions on filling out the plea agreement. Instead, O'Connor just told him to " ‘[i]nitial all the unmarked boxes.’ " Novoa said that he did not understand the plea agreement. He tried to look over it, but he "could not understand anything of it," and as such, he did not read it. Novoa testified that he asked O'Connor what "something meant" in the plea agreement, but O'Connor told him "not to worry about it, just to initial all the unmarked boxes." Novoa explained that it took "under a minute" to fill out the paperwork and that he felt "pretty rushed."
Novoa testified that if he had known of the immigration consequences of accepting the plea offer in 2003, he would not have pled guilty. At the time he pled guilty, Novoa had just become a father. Also, in addition to his newborn son, his family (siblings and mother) lived in the United States.
Novoa was detained by immigration authorities in 2012 and remained detained for two and a half years. Novoa never considered agreeing to deportation because his family lives in the United States, and he knows no one in Mexico.
On cross-examination, Novoa admitted that he told O'Connor that he did not want to go to prison. He also agreed that he did not tell O'Connor that he was a Mexican citizen. And Novoa did not ask O'Connor about the immigration consequences of his conviction.
O'Connor testified that he has been a criminal defense attorney since 1999. Over his career, O'Connor has handled thousands of cases and taken 40 to 50 cases to trial. When asked about representing Novoa, O'Connor stated that he had "very vague recollections of the case, but [he did] not remember this case for the most part." However, O'Connor stated that he did explain the portion of the change of plea form discussing the immigration consequences of pleading guilty (paragraph 14). He testified that he modified the sentence in paragraph 14, and as such, "that would have been a direct indication that immigration was an issue and that he and [Novoa] discussed it." He also said that it was his recollection that the particular judge who took Novoa's guilty plea would have specifically addressed paragraph 14 because it was modified. Thus, the judge would have drawn Novoa's attention to the modified paragraph 14.
Although O'Connor did not provide any specific detail regarding his discussions with Novoa about immigration issues, he stated that he would not have modified paragraph 14 with "different charges or if immigration to a particular client was not an issue." O'Connor then clarified his "practice was to advise [about immigration consequences], regardless, but [he knew] there could be situations—if it wasn't a concern, [he would not] discuss[ ] it directly."
O'Connor explained his general approach to representing...
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