People v. Valadez
| Decision Date | 20 April 2022 |
| Docket Number | F080618 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO HERRERA VALADEZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County No VCF032321B. Gary L. Paden, Judge.
Law Office of Joshua Longoria and Joshua Anthony Longoria for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E Winters, Chief Assistant Attorney General, Michael P Farrell, Assistant Attorney General, Carlos A. Martinez Nirav K. Desai and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Francisco Herrera Valadez (appellant) pleaded no contest to robbery in 1992 (Pen. Code, § 211)[1] and was placed on probation. In 1998, the superior court granted appellant's motion to expunge/dismiss his conviction because he successfully completed probation.
In 2019, appellant, identifying himself for the first time as "Raymundo Rodriguez aka Francisco Herrera Valadez," filed a motion to vacate his robbery plea pursuant to section 1473.7. Appellant asserted that when he entered his plea in 1992, he was not aware that his conviction for robbery would result in harsh immigration consequences, and his plea should be vacated because of his prejudicial error. The superior court held a hearing and denied the motion to vacate. Appellant immediately filed a motion for the superior court to reconsider its ruling based on alleged factual and legal errors, and new evidence in appellant's file from the public defender's office. The court held an evidentiary hearing, heard testimony from the attorney who represented appellant at the plea hearing, reviewed the public defender's file, and again denied his motion to vacate. Thereafter, appellant filed his notice of appeal.
On appeal, appellant asserts the court should have granted his section 1473.7 motion to vacate because he satisfied the burden of proving his own prejudicial error about the mandatory immigration consequences of his plea, as required by the statute.
The People assert this appeal must be dismissed because appellant's notice of appeal was untimely, since he filed it more than 60 days after the court initially denied his section 1473.7 motion, and the court's subsequent evidentiary hearing did not extend the time to file the notice of appeal. The People further assert the court properly denied appellant's motion because he did not plead to an "aggravated felony" and his section 1473.7 motion was untimely. As to the merits, the People argue appellant's declaration lacked credibility, and he failed to meet his burden of proving prejudicial error to support his section 1473.7 motion to vacate his plea.
While we agree with appellant that this appeal should not be dismissed and his section 1473.7 motion was not untimely, we affirm the superior court's order denying his motion to vacate his robbery plea. As we will explain below, we cannot ignore the numerous inconsistencies in appellant's motion and declaration when compared to the entire record. As a result, we are compelled to find, based on our independent review, appellant's assertions of prejudicial error in his supporting declaration are not corroborated, but instead are undermined and refuted by the record of his conviction. Moreover, the record reveals that appellant advised the public defender that his primary concern was not the possible immigration consequences, but obtaining a plea agreement that carried a "local lid," which was exactly the result of the plea agreement in this case. For these reasons, we affirm the trial court's order that denied appellant's section 1473.7 petition.
FACTS[2]
Around 2:00 a.m. on July 26, 1992, two clerks were working at the 7-Eleven store on Lovers Lane in Visalia when three males entered the store: appellant, Ruben Juarez, and a juvenile. Juarez snapped his fingers at the clerk who was working in the back of the store and told him to come to the front. Appellant had a bandana over his mouth and chin, stood next to Juarez, and did not say or do anything.
The juvenile suspect stood in front of the counter, pulled a gun on the clerk who was standing at the register, and demanded money. The counter clerk left the cash register open and ran to another part of the store to hide. The juvenile gunman grabbed cash from the open register and ran out of the store. Appellant and Juarez also ran out, and the three suspects got into a brown car and the vehicle left the scene.
At 2:10 a.m., a police officer responded to a dispatch about a reckless driver who was driving at excessive speeds and against traffic. The officer caught up with the vehicle, believed it matched the description of the car used by the suspects from the convenience store robbery, and attempted to conduct a traffic stop. The vehicle initially failed to stop but finally pulled over. Additional officers responded and took the vehicle's occupants into custody. Juarez was driving, appellant was sitting in the backseat, and the juvenile was also in the car. The cash stolen from the store was found under the driver's seat. The three suspects and the car were searched; the gun was not found.[3]
On July 28, 1992, a felony complaint was filed in the Superior Court of Tulare County charging appellant with robbery and a firearm enhancement. The court appointed the public defender's office to represent appellant, and that office represented him during the plea and sentencing hearings in 1992, the probation violation hearings in 1995 through 1998 and the motion to dismiss/expunge his conviction in 1998.
On August 7, 1992, a joint preliminary hearing was held for appellant and codefendant Juarez, and they were held to answer.
On August 21, 1992, the information was filed that charged appellant and Juarez with count 1, robbery (§ 211), with the special allegation as to both parties that a principal was armed with a firearm, a handgun, during the commission or attempted commission of the offense (§ 12022, subd (a)).
On August 24, 1992, appellant appeared for the arraignment and pleaded not guilty. On August 26, 1992, the court denied appellant's motion for bail reduction or release on his own recognizance.
On October 6, 1992, Judge Moran convened the pretrial hearing for both appellant and Juarez. Appellant was assisted by an interpreter and represented by Deputy Public Defender Michael Sheltzer, who was making his first appearance for appellant.[4]
Mr. Sheltzer advised the court that appellant was going to plead no contest to the charged offense of robbery and admit the enhancement. Juarez's attorney stated he was also going to plead no contest.
The court stated it had already indicated that it would place appellant and Juarez on probation since they did not have criminal records, they were 19 years old, and the third suspect used the gun. The court explained if they violated probation, they could be sentenced to six years in prison. Both appellant and Juarez said they understood. The parties stipulated there was a factual basis for the pleas.
The following exchange ensued:
The court advised appellant and Juarez of their constitutional rights, and they said they understood and waived those rights. Thereafter, they each pleaded no contest to count 1, robbery, and admitted the firearm enhancement. The court set the matter for the sentencing hearing.
The minute order for the plea hearing has a checkmark by preprinted language that appellant was advised of and understood the consequences of his plea, including "possible deportation if not a citizen of the United States." The record does not contain a printed change-of-plea form signed by appellant and his attorney.[5]Probation Report
On October 29, 1992, the probation report was filed with the court. It stated appellant was born in Mexico in 1972, he was 20 years old, he was single, and he did not have a prior criminal record.
Appellant told the probation officer that he was born in Guadalajara, Mexico, and his parents and other family members lived in Mexico. Appellant said he had been living with his brother in Woodlake (Tulare County) for two years, and he previously lived in Santa Barbara for three years. Appellant worked for a roofing firm in Fresno and previously worked as a farm laborer. The probation report stated that appellant "has no immigration documentation."
On November 3, 1992, the court held the sentencing hearing for both appellant and Juarez. Appellant was present and represented by Deputy Public Defender Patricia Stanley.
The court placed appellant on probation for three years subject to certain terms and conditions, including serving 365 days in jail with credit for time served, and suspended the jail term and payment of certain fines and fees. Juarez was also placed on probation subject to the same terms and conditions.
The court stated that appellant and Juarez were fortunate not to receive a state prison term because they committed a very serious offense. "This is an armed robbery, and they are getting great consideration here by probation being granted." The court stated it placed appellant and Juarez on probation ...
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