Filed 4/17/13 In re Barera CA5
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TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re JULIAN BARERA
On Habeas
Corpus.
F064000
(Super.
Ct. No. HC012234A)
APPEAL from an order of the Superior
Court of
Monica V. Ramallo-Young for
Petitioner Julian Barera.
Lisa S.
Green, District Attorney, and Alexandria
Sawoya, Deputy District Attorney, for Respondent The People.
-ooOoo-
The People
appeal from the grant of a petition for writ
of habeas corpus filed by petitioner Julian Barera.
charged with multiple counts of possession for sale of a controlled substance
and faced a possible sentence of over 11 years in prison. On October
22, 1992, Barera pled guilty to one count of possession for sale of
a controlled substance, in exchange for dismissal of the remaining charges and
a maximum possible sentence of 16 months.
Barera was represented by counsel at the time of his plea and the trial
court advised Barera of his constitutional
rights and immigration consequences before accepting the plea. Barera was placed on probation, which
included a condition that he be incarcerated for 12 months in the county jail.
On January 26, 2011, Barera filed a
petition for writ of habeas corpus that alleged defense counsel rendered
ineffective assistance by failing to (1) adequately advise him of the
immigration consequences of his plea, and (2) move to suppress the
evidence. The People opposed the writ on
substantive and jurisdictional grounds.
After an evidentiary hearing at which Barera did not testify, the trial
court granted the writ. We will
reverse.
FACTUAL AND PROCEDURAL SUMMARY
Barera
filed the petition for writ of habeas corpus on January 26, 2011.
In the petition he alleged his defense counsel, David Candelaria, had
rendered ineffective assistance because Candelaria failed to (1) advise him of the
immigration consequences of his plea, and (2) move to suppress evidence
obtained from a warrantless search, to which Barera asserted he did not
consent. The trial court issued an order
to show cause on the petition, which was served on the parties on February 23, 2011, directing that a
return be filed within 30 days of service of the order and that a traverse be
filed within 30 days of service of the return.
The People
filed a return on March 8, 2011. In the return, the People argued the petition
should be denied because the trial court lacked jurisdiction in that Barera was
not in custody or constructive custody.
Barera had been in local custody for one year commencing in 1992 and
after being released was on probation.
Probation was violated on June 20, 1994, and a bench warrant
issued. The bench warrant was twice
extended. In 2010 Barera was arrested
for felony driving under the influence and also on the bench warrant; he posted
bail immediately. After several
continuances of the probation violation matter, it was dismissed and probation
terminated on February 22, 2011.
Alternatively, the People argued
the petition was untimely in that it was filed 18 years after Barera entered
his plea. If the trial court was
inclined to grant relief, the People requested an opportunity to file a return
that responded to the merits because they had received the minute order from
the trial court on February 24, 2011, their file had long ago been destroyed
because it was a 1992 case, and a copy of the court’s file had been ordered but
not yet received.
On May 2,
2011, the trial court issued an interim order to file a supplemental
return. In that order, the court
concluded that although Barera was not in custody or constructive custody, the
court had jurisdiction to entertain the petition because the issues presented
were a matter of public interest and a miscarriage of justice would result
based upon Barera’s allegation of ineffective assistance of counsel.
The
supplemental return was filed June 13, 2011.
The supplemental return had multiple exhibits attached, including the
police reports from Barera’s 1992 arrest, the transcript of the plea hearing in
1992, and the 1992 probation report. The
People asked that the petition be denied because search and seizure claims were
not cognizable in a habeas corpus petition, Barera had been informed of the
immigration consequences of his plea in 1992, and Barera had unjustifiably
delayed in bringing the petition.
On August
4, 2011, the trial court ordered an evidentiary hearing. The order directing the parties to appear for
an evidentiary hearing stated that the police department and probation office
reports, as well as the transcript of the plea and sentencing hearings pertaining
to Barera’s 1992 arrest, plea, and sentence, would be admitted into evidence
pursuant to Evidence Code section 1280.
The evidentiary hearing was set for November 9, 2011. The order also framed the issues to be addressed
at the evidentiary hearing as whether (1) the search of Barera’s residence was
consensual, and (2) defense counsel advised Barera of the immigration
consequences of entering a plea.
Hearing
At the hearing, the People again
asserted that the trial court lacked jurisdiction to hear the matter. The court indicated that “if a constitutional
violation is at issue, then a delay should not prevent the Court from hearing a
habeas petition.†Barera’s counsel
objected to the People being allowed to present any testimony or evidence; the
trial court allowed evidence to be presented at the hearing.
Officer Victor Lostaunau testified
for the People. The police reports
prepared in October 1992 stated that on October 7, 1992, Lostaunau observed
Barera driving a Corvette at 65 miles per hour in a 45-mile-per-hour zone. Lostaunau stopped the vehicle for speeding
and asked Barera for his driver’s license and vehicle registration. Barera could not produce a license or any
form of identification and had no paperwork showing ownership of the
Corvette. Barera spoke “broken Englishâ€
and Lostaunau spoke “decent†Spanish, but was not fluent. Barera’s passenger, Javier Vargas, spoke no
English. There was no documentation in
the vehicle whatsoever that identified the driver, passenger, or ownership of
the vehicle.
Lostaunau placed Barera under
arrest for driving without a license and impounded the vehicle until ownership
could be determined. Barera informed
Lostaunau that he had purchased the car for $4,000 cash and his identification
and all of the Department of Motor Vehicles (DMV) paperwork on the vehicle and
his driver’s license documentation was at his home. Barera asked if he could be transported to
his residence, where he could produce paperwork establishing ownership of the
car and his identification.
Barera and
Vargas were handcuffed and placed in the back of the patrol vehicle and
Lostaunau transported the two to the address on Garden Street provided by
Barera. Officer Wenzinger met them at
the address. Lostaunau uncuffed Barera
and Barera unlocked the door of the residence with a key from his key
ring. Barera and Lostaunau entered,
while Vargas and Wenzinger waited outside.
Barera had Lostaunau follow him to a bedroom where Barera stated the
paperwork was located. On top of the
dresser, in plain view, Lostaunau saw packaging material and what appeared to
be narcotics residue. Lostaunau called
the Bakersfield Police Department and had Officer Pete Cavazos respond to the
residence because Cavazos was fluent in Spanish.
Cavazos
also testified at the evidentiary hearing.
Cavazos arrived at the Garden Street address and issued warnings
pursuant to Miranda v. Arizona (1966)
384 U.S. 436 to Barera and Vargas.
Barera and Vargas consented to a search of the residence. At no time did Barera withdraw consent or ask
the officers to halt their search.
Barera told Cavazos he was a gardener, but there was no clothing,
paperwork, or equipment related to a gardening business on the premises.
During the search, DMV paperwork
was located in a drawer of the dresser.
The drawer also contained cocaine, methamphetamine, and a large amount
of packaging materials, including balloons, plastic baggies, a small gram
scale, and a razor blade. Other items
were found in the residence, including $250 in cash and 10 grams of
marijuana. Barera also had $192 cash on
his person.
Barera had
a pager in his possession and documentation found in the Garden Street
residence indicated the pager number was registered to a Jorge Guardado Ortega,
with an address on Haley Street. The
officers spoke to the landlord of the Garden Street address, who identified
Barera as Jorge Guardado and the one who paid the rent. The landlord stated she had rented the
premises to three Hispanic males. Vargas
and Barera were transported to the jail and booked on controlled substance
charges.
Candelaria
did not appear at the evidentiary hearing. He had spoken with Barera’s counsel and
stated he had no independent recollection of the case. Candelaria also told counsel he destroys
files after 10 years and, since the case dated to 1992, he no longer had any
records from the case.
The
transcript of the plea hearing, which the trial court had admitted into
evidence by its order setting the evidentiary hearing, established that at the
plea hearing Barera was represented by counsel and had an interpreter present
to assist him. The People and Candelaria
represented that there was an agreed-upon
disposition for Barera to plead to one count, with the low term of 16 months in
prison as the lid and the other charges to be dismissed. The trial court addressed Barera and stated,
“Before I can accept that plea, I must make sure you understand your
Constitutional rights and that you’re willing to give up those rights.†Candelaria requested an opportunity to speak
with Barera, which was granted. The
trial court then stated, “[L]et the record reflect that counsel has had a
lengthy discussion with his client.â€
The trial
court informed Barera that he had the right to “fight the charges†and
subpoena, confront and cross-examine witnesses, be tried by a jury, and other
rights. If Barera chose not to give up
his rights and instead to fight the charges, there was no agreement on a
sentencing lid and Barera faced a possible 11 years 8 months in prison if found
guilty of all charges. Barera stated he
still wished to plead guilty and the trial court proceeded to explain to Barera
that he would be asked “one by one, if you understand [your rights] and if you
want to give them up.â€
As the trial
court proceeded to inform Barera of his rights, Barera often indicated he
understood, but occasionally asked for further explanation of a statement,
which the trial court gave. Candelaria
also was permitted to speak with Barera if Barera indicated he needed further
explanation or had a question about his rights.
When the trial court explained that
Barera, after serving time in custody, could be released on parole for up to
four years, Barera stated, “But I want to return to Mexico.†The court responded, “I’m not sure that
you’ll be permitted to do that.†Barera
replied, “I’m not going to be staying here.â€
Candelaria then requested to discuss the matter with his client, and he
and Barera engaged in an off-the-record conversation. The trial court then proceeded with the
following advisement:
“Also, if you are not a citizen of the United States and
you enter this plea of guilty, you could be deported, you could be denied
admission to the United States, and you could be denied naturalization pursuant
to the laws of the United States. Do you
understand that?
“BARERA:
Yes.â€
Later, the
trial court asked Barera if he had “discussed this plea and what can happen to
you with your attorney,†to which Barera responded, “Yes.†The trial court also asked Barera if he had
any questions for the court or anything he would like to discuss with his
attorney before entering a plea, to which Barera responded, “No.†After this exchange, the trial court read the
charge and accepted Barera’s plea.
The
probation department’s documents admitted into evidence stated that on February
11, 1993, the probation officer instructed Barera on the terms and conditions
of his probation. Barera was instructed
to report monthly, by form, and make payments on his court-ordered fines and
fees at the rate of $35.00 per month. On
April 29, 1993, Barera reported to the probation department and signed
extradition forms to leave California and return to Mexico to visit his mother. As of June 10, 1994, Barera had failed to pay
as instructed; the probation department had not received any information that
Barera had returned from Mexico and had not received any contact from him; an
attempt to locate Barera at his last known address was unsuccessful; and
probation no longer knew where Barera was located. A bench warrant issued.
Barera did
not testify or present any evidence at the hearing. Barera’s declaration filed in support of the
petition stated that he never gave consent for the search of his residence in
1992. He declared that at the time he
pled guilty, he did not understand the nature of the charges or the
consequences of pleading guilty. Barera
went to Mexico for a period of about three years after being released from
custody, after which he returned to the United States. Barera married a United States citizen, and
he and his wife have four children, all of whom are citizens. In 2001 United States Immigration
Barera’s residency petition because of his 1992 conviction. He contacted several attorneys after being
denied legal residency but was told there was nothing that could be done about
his conviction. Barera stated that had
he known the immigration consequences of his plea, he never would have pled
guilty. Barera was arrested in October
2010 for driving under the influence.
In arguing
the matter at the evidentiary hearing,
Barera’s counsel stated, “[T]he issue is not whether or not there was
consent. It’s not whether the search was
legal.… The issue is whether a
reasonable attorney looking at the documents before him and discussing the case
with his client would have thought that a search motion was warranted.†On the immigration consequences, Barera’s
counsel stated that “as a matter of law†it was not sufficient that the trial
court had given the advisements—defense counsel also had to investigate and
explain the immigration consequences to Barera.
At the
conclusion of the presentation of evidence by the People, the trial court
stated, “Given the lack of any evidence on the advisal regarding immigration
consequences, I’m inclined to grant the writ.â€
The trial court went on to state, “Case law is clear. It takes more than the mere advisal of a
defendant that he might be deported.â€
The People asked for a ruling on
the issue of timeliness and the trial court responded that it “implicitly†had
found, “under the circumstances of this case, the timeliness issue has been
met.†When the People asked for
clarification as to how the timeliness and jurisdiction issues had been met,
the trial court responded, “I’m not under oath.
And I’m not here to answer your questions, Counsel. I’m ruling on the writ. And that’s the extent of it.â€
The People asked to make a record
and proceeded to point out that Barera presented no testimony or evidence in
support of his petition; the documents submitted by Barera with his motion
constituted inadmissible hearsay; the petition for habeas corpus had not been
timely prosecuted; and Barera had been advised by the trial court of the
immigration consequences of his plea at the time he entered the plea and had
stated affirmatively that he understood the immigration consequences. The People argued that Barera had failed to meet
his burden of proof because he had not submitted any competent evidence and the
petition should be denied.
The trial court’s initial ruling
granting the petition for writ of habeas
corpus on the basis Barera had not received advice of counsel on the
immigration consequences of entering a plea became the trial court’s order.
DISCUSSION
The People
contend the trial court’s grant of the petition for writ of habeas corpus was
erroneous and the petition should have been denied as a
of the order granting the petition for writ of habeas corpus are whether (1)
the trial court had jurisdiction to grant the petition, (2) the petition was
untimely, and (3) Barera met his burden of proving ineffective assistance of
counsel for failing to advise of immigration consequences or in failing to move
to suppress evidence.
I. Standard of Review
A petitioner in a habeas proceeding has the
burden of presenting facts, which, if credited, prove a prima facie case for
the relief sought. (In re Lawler (1979) 23 Cal.3d 190, 195.) A trial court receiving a petition for writ
of habeas corpus evaluates it by asking whether the petitioner would be
entitled to relief if his or her factual allegations are true. (People
v. Duvall (1995) 9 Cal.4th 464, 474-475.)
If the court so finds, it must enter an order to show cause that
constitutes a preliminary determination that the petition sets forth facts,
which, if true, would entitle the petitioner to the relief sought. (In re
Serrano (1995) 10 Cal.4th 447, 455.)
The issuance of an order to show cause gives the respondent the right to
file a return to the petition; the petitioner then is entitled to file a reply,
called a traverse, to the respondent’s return.
(Ibid.) The interplay between the return and the
traverse frames the issues for decision by the trial court, and the court must
then determine
“‘whether an evidentiary hearing is needed. If the written return admits allegations in
the petition that, if true, justify the relief sought, the court may grant
relief without an evidentiary hearing.
[Citations.] Conversely, [if the
court finds] that the contentions advanced in the petition lack merit, … the
court may deny the petition without a hearing.
[Citations.] Finally, if the
return and traverse reveal that petitioner’s entitlement to relief hinges on
the resolution of factual disputes, then the court should order an evidentiary
hearing.’†(Ibid.)
Where, as here, a trial court has granted a
petition for writ of habeas corpus following an evidentiary hearing and the
People have appealed, this court
“applies the substantial evidence test to the trial court’s
resolution of pure questions of fact and independently reviews questions of
law, such as the selection of the controlling rule. With respect to mixed questions of law and
fact, this court reviews the trial court’s application of law to fact under a
deferential clearly erroneous standard if the inquiry is predominantly
factual. But when the application of law
to fact is predominantly legal, such as when it implicates constitutional
rights and the exercise of judgment about the values underlying legal
principles, this court’s review is de novo.
[Citations.]†(
1176, 1181; see also In re Pratt (1999)
69 Cal.App.4th 1294, 1314.)
II. Lack of Jurisdiction
The People contend the trial court
erroneously concluded it had jurisdiction to hear the petition.
to hear the petition because courts have “discretion to hear cases which are
normally moot given collateral consequences of deportation and the public
interest to prevent alleged law enforcement abuses as well as adjudicate
ineffective assistance of counsel claims.
[Citations.]†The trial court was
incorrect.
Penal Code
section 1473, subdivision (a)
name="_ftnref3" title="">[3] provides:
“Every person unlawfully imprisoned or restrained of his liberty, under
any pretense whatever, may prosecute a writ of habeas corpus, to inquire into
the cause of such imprisonment or restraint.â€
Generally, a defendant must be in actual or constructive custody at the
time the order to show cause issues in order to establish jurisdiction. (In re
Sodersten (2007) 146 Cal.App.4th 1163, 1217 (Sodersten).) Here, the trial
court issued the order to show cause on February 10, 2011, which was served on
the parties on February 23, 2011.
Probation was terminated, however, on February 22, 2011.
One who is on probation may
petition for a writ of habeas corpus, as that is
v. Villa (2009) 45 Cal.4th 1063, 1069 (Villa).) Once probation terminates, however, the
petition becomes moot, as a “key prerequisite to gaining relief on habeas
corpus is a petitioner’s custody.†(
As soon as Barera’s probation ended, there was no constructive custody
to serve as a basis for the trial court’s exercise of jurisdiction.
When the return challenges the
petitioner’s custody or constructive custody status, the burden of proof shifts
to the petitioner to produce evidence establishing constructive custody. (In re
Wessley W. (1981) 125 Cal.App.3d 240, 247 (Wessley W.).) Here, the
People’s initial return challenged Barera’s constructive custody status and his
ability to prosecute the petition for writ of habeas corpus. A necessary prerequisite to issuance of the
writ is custody or restraint of the petitioner by the government; it is not “an
all-inclusive remedy available at all times as a matter of right.†(Villa,
supra, 45 Cal.4th at pp. 1068-1069.)
Barera was not at risk of any custody or restraint on his liberty when
the writ issued.
The trial court’s conclusion that
it had jurisdiction to continue to entertain the petition because of collateral
immigration consequences also is wrong.
Collateral consequences of a conviction, including immigration and
deportation proceedings, cannot satisfy the jurisdictional requirement. (Villa,
supra, 45 Cal.4th at p. 1074; People
v. Kim (2009) 45 Cal.4th 1078, 1108; Mendez
v. Superior Court (2001) 87 Cal.App.4th 791, 796.)
We recognize that courts, under
certain circumstances, have the ability to continue to hear a matter that is
moot. Even though moot, a court properly
may exercise jurisdiction in instances where the issue is of great public
import and transcends the interests of the parties. (In re
Stevens (2004) 119 Cal.App.4th 1228, 1232-1233.)
This case, however, does not
present novel issues that transcend the interests of the parties. Nor is the integrity of the judicial system
at stake as, for example, when the state withholds exculpatory evidence that
bears directly on a defendant’s guilt or innocence. (Sodersten,
supra, 146 Cal.App.4th at p. 1218.)
A petition
for writ of habeas corpus is a collateral attack on a presumptively valid
judgment. (In re Bacigalupo (2012) 55 Cal.4th 312, 332.) It is designed for a person who may later be
incarcerated or lose his or her liberty if relief is not granted. (Wessley
W., supra, 125 Cal.App.3d at p. 246.)
Barera is not such a person.
Because we
conclude the trial court lacked jurisdiction to grant the petition, we need not
address the timeliness issue.
name="_ftnref4" title="">[4] Assuming, however, the trial court had
exercise jurisdiction over a moot case, we will address, and reject, the
petition on the merits.
III. Claim of Ineffective Assistance of
Counsel
In order to establish a claim of
ineffective assistance of counsel, the defendant must show that counsel’s
performance fell below an objective standard of reasonableness and that the
defendant was prejudiced as a result of counsel’s errors. (Strickland
v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); In re Harris
(1993) 5 Cal.4th 813, 832-833 (Harris);
accord, Lockhart v. Fretwell (1993)
506 U.S. 364, 369; see also People v.
Jackson (1996) 13 Cal.4th 1164, 1217.)
Prejudice is established where there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have been
different. (Strickland, at pp. 691-692; Harris,
at p. 833.) The test of prejudice,
however, is not solely one of outcome determination. The question also is whether counsel’s
deficient performance rendered the outcome unreliable or fundamentally
unfair. (Lockhart, at p. 369; Harris,
at p. 833.)
“Strickland applies to
‘ineffective-assistance claims arising out of the plea process.’ [Citation.]â€
(People v. Reed (1998) 62
Cal.App.4th 593, 597.) What is true
about a decision by a defendant to reject a plea bargain equally is true about
a decision by a defendant to accept a plea bargain. Such a decision “should not be made by a
defendant encumbered ‘with a grave misconception as to the very nature of the
proceeding and possible consequences.’
[Citation.]†(
(Alvernaz).) The mere statement by the defendant that he
or she would not have accepted the plea but for counsel’s deficient
representation is not enough alone to prove prejudice. When the claim of incompetent representation
involves rejection of a plea bargain, a defendant’s “self-serving
statement—after trial, conviction, and sentence—that with competent advice he
or she would have accepted a
proffered plea bargain, is insufficient in and of itself to sustain the
defendant’s burden of proof as to prejudice .…†(Id. at
p. 938.) Such an assertion “must be
corroborated independently by objective evidence,†because a “contrary holding
would lead to an unchecked flow of easily fabricated claims.†(Ibid.)
“We note the ease with which a
defendant, after trial, may claim that he or she received inaccurate
information from counsel concerning the consequences of rejecting an offered
plea bargain. ‘It is all too tempting for
a defendant to second-guess counsel’s assistance after conviction or adverse
sentence .…’ [Citation.] Furthermore, such a claim may be difficult or
impossible to refute directly. The
attorney-client privilege may protect against disclosure of the precise
information given a defendant by counsel during the plea negotiation process
until the defendant decides to waive that privilege, possibly years later, when
claiming he or she was incompetently counseled.
At that time, defense counsel’s recollection of the communications and
advice given the client and the client’s response to that advice, if
unrecorded, may well have faded or disappeared entirely.†(Alvernaz,
supra, 2 Cal.4th at p. 938.)
We think the Alvernaz principles also should govern the situation where the
defendant claims that inadequate representation led him or her to accept a
plea. The considerations relied upon by
the Alvernaz court are just as
present in cases of accepted pleas as they are in cases of rejected pleas, and
the potential for easily fabricated claims is just as real. A defendant unhappy with a plea bargain might
seek to secure an even better deal by alleging ineffective assistance in the
anticipation that the passage of time will make refutation of the incompetence
claim difficult and success at a trial on the reinstated charges problematic
for the prosecution. A defendant’s
self-serving statement, made after sentence under an accepted and effectuated
plea bargain, that with competent representation he or she would have rejected
the plea deal is insufficient in and of itself to sustain the defendant’s
burden of proof with respect to the prejudice prong of the doctrine of
incompetence of counsel. (See
938.) Such an assertion “must be
corroborated independently by objective evidence.†(Ibid.)
of Immigration Consequences
We first note that Barera has
failed to establish defense counsel’s performance fell below an objective
standard in 1992; defense counsel had no duty to advise of immigration
consequences in 1992. The seminal case
establishing such a duty, Padilla v.
Kentucky (2010) 559 U.S. 356, ___ [130 S. Ct. 1473, 1483], was issued in
2010, 18 years after Barera entered
his plea and his conviction was final.
In Chaidez v. United States (2013)
___ U.S. ___ [133 S.Ct. 1103, 1113], the United States Supreme Court held that
defendants whose convictions became final before Padilla cannot benefit from its holding because
not apply retroactively.
Barera contends in his brief, and
at oral argument, that the holding in Padilla
does not control his situation. He
cites People v. Soriano (1987) 194
Cal.App.3d 1470 as authority establishing an affirmative duty for defense
counsel to advise of immigration consequences.
Not so. There, defense counsel
did not give full and complete advice to the defendant. The appellate court held that if counsel
gives advice concerning immigration consequences, he or she must do so fully
and completely. The appellate court did
not hold that counsel had a duty to give such advice in the first
instance. Here, Barera claims that
defense counsel gave no advice, not that the advice was not full and complete.
Regardless, Barera has failed to
establish any prejudice from lack of an advisal by his attorney.
The following exchange took place
at the hearing where Barera entered his plea of guilty pursuant to a plea
agreement. The trial court explained
that Barera, after serving time in custody, could be released on parole for up
to four years, and Barera stated, “But I want to return to Mexico.†The trial court responded, “I’m not sure that
you’ll be permitted to do that.†Barera
replied, “I’m not going to be staying here.â€
Candelaria then asked to discuss the matter with his client, and he and
Barera engaged in an off-the-record conversation. The trial court then gave the following
advisement:
“Also, if you are not a citizen of the United States and
you enter this plea of guilty, you could be deported, you could be denied
admission to the United States, and you could be denied naturalization pursuant
to the laws of the United States. Do you
understand that?
“BARERA:
Yes.â€
As the
reporter’s transcript shows, Barera received the advisements required by
section 1016.5, and therefore Barera has failed to establish ineffective
assistance of counsel because he cannot show prejudice. Section 1016.5 provides in pertinent part:
“(a) Prior 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
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.â€
First, the
only evidence that Candelaria failed to inform Barera of the immigration
consequences of his plea is Barera’s self-serving statement to that
effect. As was noted in
statement made many years after entry of the plea when counsel’s files may have
been destroyed and memories have faded is inadequate to meet the burden of
proof in a habeas proceeding. (
938.) Moreover, a proponent of evidence,
in this case Barera, must use in-court testimony if possible; yet, Barera did
not testify and the People objected to the declaration as evidence. (People
v. Fuentes (1998) 61 Cal.App.4th 956, 960-961.)
Second, assuming for purposes of
argument Barera’s statement that Candelaria never informed him of the
immigration consequences of entering a plea is true, Barera has made no claim,
and no showing, that Candelaria misadvised
him of the immigration consequences of his plea. When the only advisement given a defendant
about immigration consequences is the advisement given by the trial court,
there is no ineffective assistance of counsel because there is no prejudice
unless a misadvisement by counsel is shown.
(People v. Shokur (2012) 205
Cal.App.4th 1398, 1407.)
Third, we
additionally reject Barera’s claim of prejudice because the independent
evidence establishes that he would have pled guilty in 1992, regardless of the
immigration consequences. The comments
made by Barera at the time he entered his plea, specifically that he planned to
return to Mexico and did not intend to stay in this country, clearly
demonstrate that negative immigration consequences would not have affected his
decision. At the time he entered his
plea, the record evidence makes clear Barera would have entered the plea, even
if he had been informed by counsel of the negative immigration
consequences. (Harris, supra, 5 Cal.4th at p. 833.)
Lastly, if we were to treat
Barera’s petition as a statutory motion to vacate as authorized by section
1016.5, the motion would be denied. In
held that for a defendant to prevail on a motion to vacate a judgment pursuant
to section 1016.5, the defendant must establish (1) he or she
immigration consequences of the plea as provided by the statute; (2) more than
a remote possibility existed that the conviction would have one or more of the
specified immigration consequences at the time of the motion; and (3) he or she
was prejudiced by the nonadvisement. (
209-210.)
The section 1016.5 advisements can
be given verbally or in writing to a defendant.
(People v. Ramirez (1999) 71
Cal.App.4th 519, 521-522.) Here, the
advisements were given verbally, they complied with the statute, and Barera
acknowledged on the record he understood them.
In People v. Limon (2009) 179
Cal.App.4th 1514, 1519, this court rejected a claim of ineffective assistance
of counsel and denied a section 1016.5 motion to vacate when the record
reflected the defendant had been advised by the trial court of immigration
consequences as set forth in the statute.
Barera has failed to meet his
burden to establish ineffective assistance as a matter of law because he has
not presented any evidence of prejudice from any alleged lack of advisement of
immigration consequences by his defense
counsel.
Consent to Search
The trial court granted the
petition for writ of habeas corpus on the grounds of ineffective assistance of
counsel in failing to advise on immigration consequences. Barera also contended defense counsel was
ineffective for failing to move to suppress evidence obtained in the 1992
search of his residence, which he now claims was nonconsensual. Issuing a writ on one ground only is an
implicit determination there is a lack of merit in the other grounds
asserted. (In re Sassounian (1995) 9 Cal.4th 535, 547.) The trial court’s implied finding that
counsel was not ineffective for failing to move to suppress evidence obtained
in the search was supported by substantial evidence.
The testimony of Lostaunau and
Cavazos at the evidentiary hearing
established that the illegal drugs were discovered in the course of a
consensual search. The search was
conducted after Barera had been advised of his constitutional rights pursuant
to Miranda v. Arizona and consented to a search. Barera told his probation officer, in 1992,
that he had consented to the search. The
police reports prepared at the time of arrest in 1992 were consistent with
Barera’s statement to his probation officer and the testimony of Lostaunau and
Cavazos at the evidentiary hearing.
The record supports the trial
court’s implied finding that there was no reasonable grounds for filing a
motion to suppress in 1992. Matters
involving trial tactics are matters as to which judicial hindsight ordinarily
will not be exercised. (
68.) In any event, an attorney has no
duty to make a futile motion and does not render ineffective assistance of
counsel by not doing so. (See
543, 587.)
Barera was given great leniency by
the plea bargain. Facing a maximum
sentence of 11 years 8 months in state prison, he bargained for probation and
county jail time. It is highly unlikely
Barera would have escaped conviction at a trial, and, if convicted, he would
have been subject to the same immigration consequences.
Even knowing the deportation and
naturalization consequences of his plea as a result of receiving the section
1016.5 advisements, Barera did not question the trial court or his counsel
concerning these consequences and did not show concern for them at the change
of plea or sentencing hearings. It is
apparent that Barera accepted a plea agreement at an early stage of the
proceedings in order to avoid the possibility of over 11 years in prison.
Barera’s self-serving declaration
to support the habeas petition apparently is nothing more than a case of
“buyer’s remorse†triggered by changed circumstances many years after the entry
of the plea. Buyer’s remorse is
insufficient to compel a court to permit withdrawal of a plea. (People
v. Knight (1987) 194 Cal.App.3d 337, 344.) Moreover, a defendant’s change
of mind, alone, does not constitute good cause for withdrawal of a guilty
plea. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208.) It also is not grounds for issuing a writ of
habeas corpus.
DISPOSITION
The order
granting the petition for writ of habeas corpus is reversed. The petition for writ of habeas corpus is
denied.
_____________________
CORNELL, J.
WE CONCUR:
_____________________
LEVY, Acting P.J.
_____________________
GOMES, J.
is some uncertainty as to the correct spelling of petitioner’s last name. The record reflects two different
spellings—“Barera†and “Barrera.†For purposes
of this opinion, we will use the spelling of “Barera,†which corresponds with
the spelling on the abstract of judgment.
the extent the People concede jurisdiction in this appeal, after challenging it
in the trial court, we decline to accept the concession.
