People v. Tapia

• Decision Date: 31 August 2018
• Docket Number: F075475
• Citation: 26 Cal.App.5th 942,237 Cal.Rptr.3d 572
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ramiro TAPIA, Defendant and Appellant.

26 Cal.App.5th 942

237 Cal.Rptr.3d 572

The PEOPLE, Plaintiff and Respondent,

v.Ramiro TAPIA, Defendant and Appellant.

F075475

Court of Appeal, Fifth District, California.

Filed August 31, 2018

Law Office of Ricci & Sprouls and Frank P. Sprouls for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

PEÑA, Acting P.J.

INTRODUCTION

Appellant Ramiro Tapia pled no contest in 2012 to one count of violating Penal Code section 182, subdivision (a)(1), conspiracy, and one count of violating Health and Safety Code section 11358, planting, harvesting, or processing cannabis plants. (Undesignated statutory references are to the Penal Code.) In 2017, Tapia filed a motion pursuant to section 1473.7 to withdraw his plea and vacate his convictions on the ground he was not informed of the actual adverse immigration consequences of his plea. The trial court denied the motion. Tapia appeals, contending he is entitled to the requested relief because trial counsel provided ineffective assistance of counsel. Specifically, he faults trial counsel for failing to advise him of the precise immigration consequences of his plea and for failing to negotiate a plea bargain with no adverse immigration consequences. We reject these contentions and affirm the trial court's order denying his motion.

FACTUAL AND PROCEDURAL SUMMARY

Because Tapia pled no contest to the offenses, we take the facts of the offenses from the probation report. On October 25, 2012, law enforcement officers from the Madera County Narcotic Enforcement Team, Madera County Sheriff's Department, and Madera Police Department response unit executed search warrants at Tapia's residence on Road 26 and at a second location on Ellis Street.

At the Ellis Street property, officers found 143 live marijuana plants. There were three medical marijuana cards, including one for Tapia, that purported to allow 90 live plants and six pounds of processed marijuana for each cardholder. Inside a wooden shed on the property were portions of marijuana plants hanging by strings and a large bucket containing freshly cut marijuana plants. In a trailer on the property, officers found a handgun and a shotgun; the shotgun had been reported stolen in Watsonville. The trailer also was being used as a location to dry marijuana.

According to Tapia's brother, the marijuana was grown at the Ellis Street property and then taken to Tapia's residence on Road 26. Tapia was present when officers arrived to execute the warrant at the Road 26 property. Officers found the garage of the residence had been converted to a marijuana processing center. Among the items in the converted garage were six pounds of marijuana and Reynolds plastic oven bags. Six individuals were in the garage when officers arrived. Officers found a revolver and a shotgun in Tapia's bedroom closet and a rifle was in a shed on Tapia's property.

After being advised of his rights and waiving those rights, Tapia spoke with officers. He admitted the residence was his, and he was aware of the processing center in the garage. He hired the individuals in the garage to work for him clipping and packaging marijuana; he paid them in marijuana. The total weight of the marijuana recovered from the Ellis Street and Road 26 properties was 760 pounds.

A criminal complaint was filed against Tapia and codefendants on October 29, 2012. As to Tapia, the complaint alleged violations of section 182, subdivision (a)(1), conspiracy; Health and Safety Code section 11358, planting, harvesting, or processing cannabis plants; and Health and Safety Code section 11359, possession for sale of cannabis.

On November 15, 2012, Tapia was before the trial court. At the commencement of that hearing, Defense Counsel Craig Collins noted Tapia was "considering the offer," presumably a plea offer from the People. Collins stated Tapia was a legal permanent resident of the United States and "I want to just see how this would affect his status therein." The trial court trailed the matter to later that morning and told Collins, "just let me know when you're ready to proceed." The trial court also offered to put the matter over to another day.

After a passage of time, the matter was back on the record. Collins stated Tapia was being assisted by the Spanish-language interpreter and would be pleading to one count of conspiracy in violation of section 182 and one count of cultivation of marijuana in violation of Health and Safety Code section 11358. In exchange for his plea, the People would dismiss the charge of possession for sale in violation of Health and Safety Code section 11359 and agree to felony probation.

The trial court inquired about the "plea form," and Collins stated the Spanish interpreter had assisted Tapia with filling out the form. The plea form, entitled "Declaration Regarding Guilty Plea," bears the signatures of Tapia, the Spanish interpreter, and Defense Attorney Collins.

The plea form includes the statement that Tapia's attorney had explained the consequences of the plea to him and "if not a citizen, my plea may have the consequence of my deportation, exclusion from admission to the United States or denial of naturalization pursuant to the laws of the United States." Tapia initialed this statement. Above Tapia's signature at the end of the form, it states he has read each item on the form, discussed it with his attorney, and understands each item; his initials by each item is proof thereof.

During the November 12, 2012, hearing, the trial court went over each item on the plea form. Regarding the immigration consequences of the plea, the trial court stated:

"[D]o you understand, also, if you're not a citizen of the United States and you enter a plea of guilty or no contest, it will result in your being deported to your country of origin and never being allowed to legally return to this country and never being allowed to become a legal citizen of this country. [¶] Do you understand this?

"[Tapia]: Yes." (Italics added.)

Tapia pled as agreed and the trial court ordered a probation report prepared. The probation officer noted Tapia had a prior conviction for battery. When the probation report was prepared in December 2012, Tapia was 43 years old. He informed the probation officer that he was a citizen of Mexico, he had graduated high school in Mexico, and he had completed one semester at the University of Guadalajara in Mexico. There were no holds, immigration or otherwise, identified by the probation office.

Three circumstances in aggravation were identified by the probation officer pursuant to California Rules of Court, rule 4.421. The circumstances in aggravation were identified as: (1) Tapia occupied a position of leadership in the commission of the crime ( rule 4.421(a)(4) ); (2) the manner in which the crime was carried out demonstrated sophistication and professionalism, as Tapia headed a marijuana cultivation, processing, and distribution operation, ( rule 4.421(a)(8) ); and (3) the crime involved a large quantity of contraband, 760 pounds of marijuana and 143 marijuana plants ( rule 4.421(a)(10) ).

Tapia was sentenced in accordance with the plea agreement on December 13, 2012.

On January 24, 2017, Tapia filed a motion pursuant to section 1473.7 to withdraw his plea and vacate his convictions. The motion alleged Tapia had left the country for a trip to Mexico, and upon reentering this country, he was detained and placed into custody. One of the exhibits attached to the motion was documentation from the Department of Homeland Security.

Tapia argued that had he known he was barred from reentry or subject to deportation under title 8 United States Code section 1226(c) because of his conviction for a crime involving a controlled substance, or if he had been advised of the immigration consequences of his plea, he would not have traveled outside the United States. Tapia also argued he never would have pled to the offenses had he known of the consequences of his plea to his status as a legal resident. In addition, the motion alleged Collins rendered ineffective assistance by failing to explain the immigration consequences of the plea to Tapia.

Among the multiple exhibits attached to the section 1473.7 motion was a document purporting to be a declaration from Tapia, but is unsigned. The unsigned declaration asserts Tapia was not involved with the cultivation or packaging of marijuana. It also states Tapia was not told his plea could lead to deportation or that the offense to which he pled was an "aggravated felony." A signed declaration from Tapia's brother and codefendant states Tapia was not involved in the marijuana cultivation and packaging operation.

The People filed written opposition to the section 1473.7 motion on February 17, 2017. Attached to the People's opposition was a copy of the Declaration Regarding Guilty Plea signed by Tapia and a declaration signed by Defense Counsel Collins.

Collins declared he anticipated Tapia would be convicted on all charges had he gone to trial. Tapia was considering the People's original offer, so Collins asked to trail the case to discuss with Tapia "the immigration issues involving the plea bargain." Collins averred he negotiated the best resolution possible, considering the facts and the People's position on the matter; the charge pertaining to sales or distribution of marijuana was struck.

Collins stated he advised Tapia, with the use of a Spanish-language interpreter, the plea would expose him "to deportation proceedings and other negative consequences." Collins declared it was his "custom and practice" with clients in Tapia's position to state the negative consequences included "loss of permanent resident status, preclusion from citizenship and prevention of reentry."

Furthermore, Collins stated he could not specifically recall, but it...