People v. Ruiz

• Decision Date: 05 June 2020
• Docket Number: 2d Crim. No. B296742
• Citation: 263 Cal.Rptr.3d 555,49 Cal.App.5th 1061
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Josefina RUIZ, Defendant and Appellant.

49 Cal.App.5th 1061

263 Cal.Rptr.3d 555

The PEOPLE, Plaintiff and Respondent,

v.Josefina RUIZ, Defendant and Appellant.

2d Crim. No. B296742

Court of Appeal, Second District, Division 6, California.

Filed June 5, 2020

Gary Finn, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Steven D. Matthews and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

GILBERT, P. J.

Assume a defendant wishes to plead guilty to a crime. She is an immigrant and is told: 1) her plea of guilty may make her ineligible to become a U.S. citizen; or 2) her plea of guilty will make her ineligible to become a U.S. citizen. Is there a significant distinction between the two advisements? Our Supreme Court and the Legislature think there is.

We, like all courts, must follow this view even when it involves the reversal of a plea of guilty that occurred three decades ago. We are mindful of the dissent's concerns, but the Supreme Court and the Legislature have spoken. The result here is required by law. (See People v. Patterson (2017) 2 Cal.5th 885, 889, 895, 216 Cal.Rptr.3d 95, 391 P.3d 1169 ; Pen. Code, § 1473.7.)¹ In section 1473.7, the Legislature broadened the standards to challenge guilty pleas involving advisements concerning immigration consequences.

Josefina Ruiz appeals an order denying her recent motion to vacate her 1991 conviction for possession for sale of cocaine base ( Health & Saf. Code, § 11351.5 ) following her no contest plea. Ruiz's motion to vacate was filed pursuant to section 1473.7. She claimed her counsel did not advise her that a mandatory consequence of her plea would make her "permanently ineligible to ever become a legal resident of the United States ."

We conclude Ruiz may pursue her current motion to vacate the conviction. She had filed an earlier unsuccessful motion to vacate the conviction in 2017. But that prior motion did not bar the current motion because it was based on a different ground and on an earlier version of section 1473.7. We reverse and remand with instructions.

FACTS

In 1991, an informant told police that drug sales were occurring at Ruiz's home. After a search of her home, the police found 19 grams of cocaine and approximately $4,100 in a duffle bag in Ruiz's bedroom. Following her arrest, Ruiz entered into a negotiated plea agreement and pled no contest to possession for sale of cocaine base. She initialed an advisement in the written plea agreement stating, "I understand that if I am not a citizen of the United States, the conviction for the offense charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (Italics added.)

On December 16, 2016, Ruiz filed a motion to vacate her conviction and set a hearing date for January 6, 2017 ("2017 motion"). The 2017 motion was entitled "Notice of Motion and Motion to Reopen Case and Vacate Conviction; Memorandum of Points and Authorities [Pursuant to Cal. Penal Code §[§] 1016.5 and 1473.7]." The 2017 motion argued that her "conviction should be vacated because the court did not ensure that [she] was adequately warned before pleading guilty to a conviction that may result in deportation." (Italics added.) The trial court denied the 2017 motion because the record showed that she was advised her conviction "may have " negative immigration consequences.

In 2019, Ruiz filed a "Notice of Motion and Motion to Vacate Conviction Pursuant to Section 1473.7." She claimed she "was not advised by her attorney that, because of her plea in this case, she would be rendered permanently ineligible to ever become a legal resident of the United States ." Ruiz claimed her attorney did not defend her against the "immigration consequences that she now faces," including removal proceedings. Her prior counsel brought a motion to vacate in 2017, pursuant to the general advisement standard of section 1016.5, which does not involve the mandatory immigration consequences she now faces for her controlled substance conviction.

The trial court denied the 2019 motion, ruling that it lacked jurisdiction to consider Ruiz's motion. It found the current motion was an untimely "motion for reconsideration" of the prior 2017 motion.

DISCUSSION

Immigration Advisements

Ruiz contends she did not receive an adequate advisement about the immigration consequences of her plea. We agree.

Under section 1016.5, subdivision (a), defendants must be advised: "If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (Italics added.)

The California Supreme Court has held, however, that the words "may have" in a section 1016.5 immigration advisement are not an adequate immigration advisement for defendants charged with serious controlled substance offenses. ( People v. Patterson , supra , 2 Cal.5th at pp. 889, 895, 216 Cal.Rptr.3d 95, 391 P.3d 1169.) Defendants must be advised that they will be deported, excluded, and denied naturalization as a mandatory consequence of the conviction. ( Ibid. ) "A defendant entering a guilty plea may be aware that some criminal convictions may have immigration consequences as a general matter, and yet be unaware that a conviction for a specific charged offense will render the defendant subject to mandatory removal." ( Ibid . )

In 1991, when Ruiz pled no contest to her offense, the plea form contained the following immigration advisement: "I understand that if I am not a citizen of the United States, the conviction for the offense charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (Italics added.) This was not an adequate advisement given the nature of her offense. ( People v. Patterson , supra , 2 Cal.5th at pp. 889, 895, 216 Cal.Rptr.3d 95, 391 P.3d 1169.)

In Ruiz's 2017 motion, Ruiz's counsel argued the 1991 conviction must be vacated because Ruiz was not advised that her conviction "may result in deportation." But this motion should have been based on the ground that Ruiz was not advised that these immigration consequences were mandatory . ( People v. Patterson , supra , 2 Cal.5th at pp. 889, 895, 216 Cal.Rptr.3d 95, 391 P.3d 1169 ; People v. Espinoza (2018) 27 Cal.App.5th 908, 916-917, 238 Cal.Rptr.3d 619.)

The trial court denied the 2017 motion, ruling that the advisement was valid because Ruiz was advised "the conviction for the offense charged may have the consequences of deportation." The court erred because she was not advised that the immigration consequences were mandatory. ( People v. Patterson , supra , 2 Cal.5th at pp. 889, 895, 216 Cal.Rptr.3d 95, 391 P.3d 1169 ; People v. Espinoza , supra , 27 Cal.App.5th at pp. 916-917, 238 Cal.Rptr.3d 619.)

In summary, Ruiz's 1991 advisement was not valid, her counsel moved to set aside the plea on the wrong ground, and the trial court erred in ruling she was properly advised. ( 8 U.S.C. § 1227(a)(2)(B) ; People v. Patterson , supra , 2 Cal.5th at p. 895, 216 Cal.Rptr.3d 95, 391 P.3d 1169 ; People v. Espinoza , supra , 27 Cal.App.5th at pp. 916-917, 238 Cal.Rptr.3d 619.)

The Right to Bring a Motion in 2019 Under Section 1473.7

Section 1473.7 was enacted in 2017. It authorized a defendant to "prosecute a motion to vacate a conviction" that 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." (Former § 1473.7, subd. (a)(1).)

In 2018, the Legislature passed Assembly Bill No. 2867 to modify section 1473.7. This new law, effective January 1, 2019, made it easier to retroactively challenge convictions based on the ground that the defendant was not properly advised of the immigration consequences. Before the passage of Assembly Bill No. 2867, courts had ruled that defendants filing section 1473.7 motions and claiming their counsel erred on immigration advisements had to meet the standards required by Strickland v. Washington (1984) 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064-2065, 2068, 80 L.Ed.2d 674, 693-694, 697-698 to set aside a conviction.

Thus, in 2017, when Ruiz's first motion was denied, defendants seeking to pursue section 1473.7 motions to vacate convictions based on counsel's immigration advisement errors were required: 1) to prove that "counsel's performance fell below an objective standard of reasonableness under prevailing norms," and 2) to also prove there is a "reasonable probability of a different outcome if counsel had rendered effective assistance." ( People v. Camacho (2019) 32 Cal.App.5th 998, 1005, 244 Cal.Rptr.3d 398.) These were barriers to successful motions to vacate based on facially invalid immigration advisements.

The new law, effective in 2019, eliminated the Strickland requirements. ( People v. Camacho , supra , 32 Cal.App.5th at pp. 1005-1006, 244 Cal.Rptr.3d 398.) Now the trial court may set aside a conviction based on counsel's immigration advisement errors without a "finding of ineffective assistance of counsel." ( Id. at p. 1006, 244 Cal.Rptr.3d 398, italics omitted.) A defendant need only show that there were "one or more" errors that "were prejudicial and damaged [a defendant's] ‘ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of [his or her] plea.’ " ( Id. at p. 1009, 244 Cal.Rptr.3d 398.)

The 2019 amendment made another significant change. After 2017, a defendant could prevail only on judicially created findings. The "grounds for the motions" were not included in the statute. (Sen. Com. on Public...