People v. Rubio-Baez
| Decision Date | 18 November 2022 |
| Docket Number | A163056 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO RUBIO-BAEZ, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC077948A
Defendant and appellant Marco Antonio Rubio-Baez was convicted of robbery on a plea of no contest in 2013. In 2021, he moved to vacate the conviction pursuant to Penal Code section 1473.7,[1] which permits individuals who are no longer in custody to move to vacate a conviction or sentence on the ground that it is "legally invalid due to prejudicial error damaging the moving party's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of" the plea. (§ 1473.7, subd. (a)(1).) He appeals from the denial of this motion. We affirm.
In 2013, Rubio-Baez was apprehended near a bank that had just been robbed, identified by bank employees as the person who had committed the robbery, and found to be in possession of the stolen bag of money and .31 gram of methamphetamine. The victim reported that Rubio-Baez had handed him a demand note said he had five minutes to give him the money and started counting; the victim handed him a bag containing $4,000 cash and Rubio-Baez left. Rubio-Baez told the police he entered the bank with the intent to commit a robbery, gave a demand note to a banker and told him he had five seconds to hand over the money, then fled the bank with the money the banker gave him. Rubio-Baez said he knew it was wrong to rob the bank, but he needed the money to pay rent, buy a cell phone and send money to his mother in Mexico.
Rubio-Baez was charged with second degree robbery (§ 212.5, subd (c)),[2] possession of methamphetamine (Health &Saf. Code, § 11377, subd. (a)), burglary (§ 460, subd. (b)), theft of property exceeding $950 (§ 487, subd. (a)), and possession of stolen property (§ 496, subd. (a)). Pursuant to a negotiated plea agreement, he entered a plea of no contest to the robbery charge and admitted the offense was a serious felony under section 1192.7, subdivision (c)(19), and a violent felony under section 667.5 subdivision (c)(9). The remaining counts were dismissed, as were two separate misdemeanor cases.
The plea form Rubio-Baez signed stated, "I understand that if I am not a citizen, conviction of the offense for which I have been charged will have the consequences of deportation, exclusion from the United States or a denial of naturalization." The form also stated that counsel had explained that the maximum penalty for the offense was five years in prison, four years parole, and specified fines; that the offense was a strike; and that Rubio-Baez had not been induced to plead guilty or nolo contendere by any promise or representation except, "2 year TOP &refer consider residential treatment program-indicated" and dismissal of two misdemeanor cases with Harvey waivers.[3]
At the hearing on the plea, Rubio-Baez responded "yes" when the court asked, "Do you understand that if you are not a citizen of this country this conviction will have the consequence of deportation, exclusion from admission to the United States and denial of naturalization." The court explained that the low term of two years was an indicated sentence and not a promise, and that the sentencing court could impose up to the maximum term of five years, and Rubio-Baez acknowledged he understood.
At sentencing, noting its view that Rubio-Baez realized his offense was "a big mistake" and "because of [his] drug use," the trial court suspended imposition of sentence and placed Rubio-Baez on three years' supervised probation with one year in county jail, modifiable to a residential treatment program approved by probation.
In 2016, Rubio-Baez's conviction was dismissed in the interests of justice pursuant to section 1203.4.[4]
On January 26, 2021, Rubio-Baez filed a motion to withdraw his no contest plea pursuant to section 1437.7 on the ground that when he entered his plea, he was unaware the conviction would render him subject to "mandatory removal and certain denial of benefits from the United States." The motion emphasized the complexity of immigration law and fact that the Ninth Circuit did not clarify that a robbery conviction was an "aggravated felony" for purposes of immigration law until years after Rubio-Baez's plea.
Rubio-Baez submitted a declaration in which he stated that he entered the plea "based on the understanding that [he] would not have any serious immigration consequences," he "did not meaningfully understand that this conviction could become [a] removable offense many years after my plea because of the complexities of immigration law," and he "would not have accepted this plea if [he] knew that this conviction could result in certain removal and denial of benefits and relief." Rubio-Baez declared that "[t]he right to remain in the United States was more important to [him] than any potential jail sentence" and that he "had family, community ties, obligations, and opportunities in the United States" and "would have faced extreme hardship if [he] was deported to [his] country." According to his declaration, at the time of his plea, Rubio-Baez was "going through terrible depression due to a [serious] family illness," and he had since recovered through involvement with church and a rehabilitation program, had become a "conscientious productive member of society" and had not gotten into further trouble with the law.
Rubio-Baez declared that he had been in the United States "a long time" and had "graduated high school here in 2005." He had obtained a "U visa" [5] in 2011, which allowed him to work legally, and had been gainfully employed ever since. At the time of his plea he was afraid to return to his home state in Mexico, which was "very dangerous" due to crimes such as abductions, robberies and killings, and was on the "U.S. Travel's Do not travel list." Rubio-Baez declared, [6] At the hearing, Rubio-Baez testified that he came to the United States in 2003, at age 17. When he entered his plea in 2013, he did not know it would subject him to mandatory removal for life and no one ever talked to him about the term" 'aggravated felony.'" He would not have taken the plea bargain if he had known of these consequences because "it's really important for me to be in the United States since I've been in the United States for a long time" and "I've been here since I was 17 years old, so it is really important for me to be around my family."
Rubio-Baez's current attorney stipulated that a section 1016.5 advisement[7] was given at the time of the plea. Rubio-Baez acknowledged that his plea form highlighted a provision stating," 'you will be subject to deportation,'" but testified that this did not mean he understood the consequences because he never got to discuss it with an immigration attorney and his public defender did not "have the whole knowledge of this." He told his attorney about his immigration status and the attorney's response was," 'This is the deal that I got for you.'" The attorney did not offer Rubio-Baez an opportunity to speak with an immigration lawyer and he did not know he could do so. Rubio-Baez acknowledged that the trial court at his plea hearing told him the conviction" 'will have consequences of deportation'" but testified,
Rubio-Baez testified that he went back to court in 2016 to get his conviction dismissed because he was "trying to find a better solution" or "adjust my status," and this was when he learned he was "stuck" because of the plea. He was not currently facing deportation, exclusion or denial of a naturalization application.
Defense counsel argued the only relevant question under section 1473.7 is whether Rubio-Baez understood the consequences of his plea, regardless of the reasons for any lack of understanding. His main argument was that in 2013 the law "was misunderstood" as providing that robbery was not an aggravated felony, so there was "no way anybody could have known these radical consequences." Counsel maintained that the fact it took until 2019 for the Ninth Circuit to clarify the law
Counsel also argued it did not matter whether another plea deal was available, only whether Rubio-Baez understood the consequences of this one. Counsel maintained that Rubio-Baez's assertions were corroborated by the facts that he had a U visa and gainful employment, making it less likely he would knowingly "take something unsafe" he had a fear of returning to Mexico; and he had a long history of ties to the United States. Counsel further argued that the motion to vacate should be granted in the interest of justice; that Rubio-Baez had already served his time and become a productive member of society, leaving only the immigration consequences of his offense at stake; and that the 2016 dismissal of the conviction under section 2013.4...
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