P. v. Guzman

Filed 2/27/19 P. v. Guzman CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
RODOLFO GUZMAN,
Defendant and Appellant.
G055810
(Super. Ct. No. 97WF1387)
O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County,
Cheri T. Pham, Judge. Affirmed.
Robert L.S. Angres, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and
Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
* * *

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In 1997, defendant Rodolfo Guzman pled guilty to possession of marijuana
for sale (Health & Saf. Code, § 11359), possession of methamphetamine for sale (Health
& Saf. Code, § 11378), and sale or transportation of methamphetamine (Health & Saf.
Code, § 11379, subd. (a)). The trial court placed Guzman on probation for three years.
In August 2017, Guzman filed a motion to vacate his convictions because
the trial court failed to provide mandatory immigration-related advisements (Penal Code
section 1016.5; all further statutory references are to the Penal Code, unless other stated),
and his trial attorney failed to advise him of the immigration consequences of entering a
guilty which damaged his ability to meaningfully understand the actual or potential
immigration consequences of a guilty plea (§ 1473.7, subdivision (a).) The trial court
denied the motion.
Guzman contends the trial court abused its discretion in denying his motion
to vacate under section 1016.5 because the record contains no evidence that the
sentencing court (which accepted the guilty plea) conducted an inquiry to satisfy itself
that Guzman understood the consequences of his plea as a noncitizen. The plea form
demonstrates the sentencing court substantially complied with section 1016.5 and
therefore Guzman was not entitled to relief. We also reject Guzman’s contention the trial
court erred in denying his motion to vacate per section 1473.7. The plea form shows
Guzman was advised about immigration consequences of pleading guilty. Moreover,
even if we assume Guzman received a deficient advisement, he failed to show he would
have not entered a guilty plea had he been properly advised. Accordingly, we affirm the
trial court’s order denying Guzman’s motion to vacate his convictions.
I
FACTUAL AND PROCEDURAL BACKGROUND
In his motion to vacate his three drug convictions, Guzman claimed (1) the
trial court failed to provide the immigration-related advisements mandated by section

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1016.5, and (2) his trial attorney provided constitutionally ineffective assistance because
he informed Guzman that he would not be deported as a result of entering a guilty plea.
According to Guzman, he would not have pled guilty had he known his plea would result
in immigration consequences.
In a supporting declaration, Guzman asserted that “avoiding deportation
was always my biggest concern” and that his lawyer told him that he would not be
deported based on his guilty plea. Guzman further asserted that “had I been correctly
advised that I would be subject to deportation proceedings and prevent[ed] . . . from
obtaining lawful residency, I would have requested an attorney to assist me in negotiating
a safer disposition. If an immigration-safe disposition was not possible, I would have
demanded to go to trial.”
The motion to vacate attached copies of the plea form and the relevant
minute order. On the plea form, Guzman initialed the box next to the statement, “I
understand that if I am not a citizen of the United States the conviction for the offense
charged may have the consequence of deportation, exclusion from admission to the
United States, or denial of naturalization pursuant to the laws of the United States.” He
also signed under and initialed the box next to the statement, “I declare under penalty of
perjury that I have read, understood, and personally initialed each item above and
discussed them with my attorney. . . .” His attorney signed under the following
statement: “I am attorney of record and I have explained each of the above rights to the
defendant.” The deputy district attorney did not sign the form. In the minute order, the
box reflecting that the court advised Guzman of the “conseq[uences] of [the guilty] plea
if not a citizen” was not checked. However, the attached “Certified Plea Minute Order”
reflected that the court found Guzman understood “The nature of the charge(s) and the
consequences of the plea.”
Guzman did not attach a declaration from his former trial counsel. But he
attached a declaration from his current attorney, Cole Williams, who stated that he

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contacted Guzman’s former lawyer. According to Williams, Guzman’s former lawyer
informed him that “he does not have any independent recollection of Mr. Guzman’s
case.” Williams also stated that he could not locate any notes or a reporter’s transcript of
the plea hearing.
Following a hearing, the trial court denied Guzman’s motion to vacate his
convictions and explained its reasoning in a written ruling. The court determined that the
judge who accepted Guzman’s guilty plea substantially complied with section 1016.5
because Guzman’s initialing and signing of the plea form indicated that he had received
the required immigration-related advisements.
The trial court also determined Guzman was not entitled to relief under
section 1473.7. It found that Guzman failed to prove his former attorney was
constitutionally ineffective. The court found the record contradicted Guzman’s assertion
that his former attorney misadvised Guzman that he would not be deported if he pleaded
guilty. In addition, the court determined that Guzman could not show prejudice because
“[n]othing in the available record indicates that [Guzman] was concerned about his
immigration consequences at the time of the plea.” The court concluded Guzman’s
“primary concern was getting out of custody as soon as possible,” based in part on his
prompt decision to plead guilty. The court noted, “Petitioner’s maximum exposure for
his crimes was four years, eight months in state prison. Petitioner received only 120 days
in jail and probation.”
II
DISCUSSION
A. Motion to Vacate Conviction Under Section 1016.5
Section 1016.5, subdivision (a), provides that “[p]rior to acceptance of a
plea of guilty or nolo contendere to any offense punishable as a crime under state law,
except offenses designated as infractions under state law, the court shall administer the

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following advisement on the record to the defendant: [¶] 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.” “If, after January 1, 1978, the
court fails to advise the defendant as required by this section and the defendant shows
that conviction of the offense to which defendant pleaded guilty or nolo contendere may
have the consequences for the defendant of deportation, exclusion from admission to the
United States, or denial of naturalization pursuant to the laws of the United States, the
court, on defendant’s motion, shall vacate the judgment and permit the defendant to
withdraw the plea of guilty or nolo contendere, and enter a plea of not guilty.” (§ 1016.5,
subd. (b).) “To prevail on a motion to vacate under section 1016.5, a defendant must
establish that (1) he or she was not properly advised of the immigration consequences as
provided by the statute; (2) there exists, at the time of the motion, more than a remote
possibility that the conviction will have one or more of the specified adverse immigration
consequences; and (3) he or she was prejudiced by the nonadvisement. [Citations.]”
(People v. Totari (2002) 28 Cal.4th 876, 884.)
Guzman contends the record does not show the sentencing court verbally
advised him about the immigration-related consequences of entering the guilty plea. But
a verbal advisement is not required. “‘[A] validly executed waiver form is a proper
substitute for verbal admonishment by the trial court. [Citation.]’ [Citations.] The
advisement need not be in the exact language of section 1016.5 and can be in writing.”
(People v. Araujo (2016) 243 Cal.App.4th 759, 762.) Here, the plea form advised
Guzman that “the conviction for the offense charged may have the consequence of
deportation, exclusion from admission to the United States, or denial of naturalization
pursuant to the laws of the United States.” Those advisements track the advisements
mandated by section 1016.5.

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Guzman contends section 1016.5 requires the sentencing court to
“satisfy[y] itself that the defendant understood the advisements and had an opportunity to
discuss the consequences with counsel.” (People v. Ramirez (1999) 71 Cal.App.4th 519,
522.) We agree, but the record shows the court substantially complied with this
requirement. The plea form indicated that Guzman understood and had the opportunity
to discuss the advisements with counsel. Specifically, Guzman initialed and signed under
the statement, “I declare under penalty of perjury that I have read, understood, and
personally initialed each item above and discussed them with my attorney. . . .” His
counsel signed under the statement, “I am attorney of record and I have explained each of
the above rights to the defendant.” The trial court substantially complied with section
1016.5, as the required advisements were included in the plea form, which Guzman
acknowledged reading, understanding, initialing, and signing. Accordingly, Guzman was
not entitled to relief under section 1016.5.
B. Motion to Vacate Under Section 1473.7
Section 1473.7, subdivision (a), permits a person no longer imprisoned or
restrained to ask the court to vacate a conviction if the conviction “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 a plea of guilty or nolo contendere.” (Id., subd. (a)(1).) The court must
hold a hearing on the motion, and if the moving party establishes by a preponderance of
the evidence he or she is entitled to relief, the court shall grant the motion to vacate the
conviction. (Id., subds. (d) & (e)(1).)
Here, Guzman based his entitlement to relief under section 1473.7 on his
trial counsel’s purported constitutionally ineffective assistance. This court reviews de
novo a trial court’s order denying a section 1473.7 motion based on a claim of ineffective
assistance of counsel. (See People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76, 79
(Ogunmowo); accord, People v. Tapia (2018) 26 Cal.App.5th 942, 950; People v. Olvera

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(2018) 24 Cal.App.5th 1112, 1116-1117 (Olvera).) Under this standard, we “accord
deference to the trial court’s factual determinations if supported by substantial evidence
in the record, but exercise our independent judgment in deciding whether the facts
demonstrate trial counsel’s deficient performance and resulting prejudice to the
defendant.” (Ogunmowo, supra, 23 Cal.App.5th at p. 76.) To prevail on his claim of
ineffective assistance, Guzman had to prove “that (1) counsel’s representation fell below
an objective standard of reasonableness, as judged by ‘prevailing professional norms’
[citation], and, (2) ‘but for counsel’s unprofessional errors, the result of the proceeding
would have been different’ [citations.]; that is, ‘a reasonable probability exists that, but
for counsel’s incompetence, he would not have pled guilty and would have insisted,
instead, on proceeding to trial’ [citations].” (Olvera, supra, 24 Cal.App.5th at pp. 1116-
1117.)
Guzman asserted his counsel affirmatively misadvised him that he would
not suffer deportation as a result of entering the guilty plea. (See Ogunmowo, supra,
23 Cal.App.5th at p. 77 [“Affirmatively misadvising a client that he will not face
immigration consequences as a result of a guilty plea in a drug trafficking case—when
the law states otherwise—is objectively deficient performance under prevailing
professional norms.”].) But the trial court, based on the record, found that the former
attorney properly advised Guzman he could face deportation as a result of entering the
guilty plea. The court’s credibility determination is amply supported by the plea form.
As noted, in the plea form Guzman initialed the box next to the statement, “I understand
that if I am not a citizen of the United States the conviction for the offense charged may
have the consequence of deportation, exclusion from admission to the United States, or
denial of naturalization pursuant to the laws of the United States.” Both Guzman and his
former attorney also stated under penalty of perjury that they discussed those immigration
consequences.

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Moreover, even if Guzman had established his trial counsel’s performance
was deficient, he also had to establish prejudice. This required Guzman to prove by a
preponderance of the evidence that, if properly advised, he would not have agreed to the
negotiated disposition. (People v. Martinez (2013) 57 Cal.4th 555, 559, 567 (Martinez).)
Courts determine prejudice on a case-by-case basis in light of all of the circumstances.
(Lee v. United States (2017) __U.S. ___, [137 S.Ct. 1958, 1966] (Lee).) “‘Surmounting
Strickland’s high bar is never an easy task,’ [citation], and the strong societal interest in
finality has ‘special force with respect to convictions based on guilty pleas.’ [Citation.]
Courts should not upset a plea solely because of post hoc assertions from a defendant
about how he would have pleaded but for his attorney’s deficiencies. Judges should
instead look to contemporaneous evidence to substantiate a defendant’s expressed
preferences.’” (Lee, supra, 137 S.Ct. at p. 1967.) “[T]he defendant bears the burden of
establishing prejudice” and in the case of a plea bargain, “must provide a declaration or
testimony stating that he or she would not have entered into the plea bargain if properly
advised. It is up to the trial court to determine whether the defendant’s assertion is
credible, and the court may reject an assertion that is not supported by an explanation or
other corroborating circumstances.” (Martinez, supra, 57 Cal.4th at p. 565.)
Here, the trial court found Guzman’s assertion that he would have rejected
the negotiated disposition not credible. No contemporaneous or corroborating evidence
was presented that in 1997, Guzman would have not pled guilty if he had been advised of
the immigration consequences of his plea. Rather, the record shows Guzman was eager
to be released from custody and willing to enter a guilty plea with immigration
consequences, as he signed a form acknowledging his guilty plea may have immigration
consequences. Accordingly, Guzman has not established his trial counsel’s allegedly
deficient performance prejudiced him. In sum, the trial court did not err in denying
defendant’s section 1473.7 motion to vacate his 1997 drug convictions.

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III
DISPOSITION
The order denying Guzman’s motion to vacate is affirmed.
ARONSON, ACTING P. J.
WE CONCUR:
FYBEL, J.
GOETHALS, J.

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