P. v. Bravo
Filed 4/27/11 P. v. Bravo CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
| THE PEOPLE, Plaintiff and Respondent, v. MARCO ANTONIO BRAVO, Defendant and Appellant. | 2d Crim. No. B221953 (Super. Ct. No. 1307858) (Santa Barbara County) |
Marco Antonio Bravo appeals the trial court's order denying his motion to withdraw his no contest plea to transporting a controlled substance (Health & Saf. Code,[1] § 11379, subd. (a)). Appellant was granted five years probation with the condition that he serve 120 days in county jail, with 56 days presentence custody credit. He contends that his trial attorney provided constitutionally ineffective assistance by failing both to advise him of the immigration consequences of his plea, and to seek a plea to a charge with lesser consequences. We affirm.
FACTS AND PROCEDURAL HISTORY
On November 22, 2008, appellant was stopped for driving a vehicle without a front license plate. During the stop, appellant exhibited symptoms of being under the influence of a controlled substance and admitted that he had methamphetamine. A small amount of the drug was found on appellant's person along with a glass pipe and $1,825 in cash. Four additional packages of methamphetamine and a small amount of marijuana were found in appellant's car. The methamphetamine found in appellant's possession totaled 23 grams.
During the stop, someone called appellant's cell phone asking about "an ounce or half an ounce." Appellant subsequently received four additional calls of a similar nature. A digital scale with methamphetamine residue, an empty gun holster, and handgun ammunition were later found at appellant's residence. Appellant admitted that he used methamphetamine, but denied that he sold the drug.
Appellant was subsequently charged with transporting a controlled substance, possession for sale of a controlled substance (§ 11378), and being under the influence of a controlled substance (§ 11550, subd. (a)). Counsel was appointed and appellant pled not guilty. In March 2009, appellant waived his rights and entered a no contest plea to transporting a controlled substance in exchange for dismissal of the remaining charges. At the change of plea hearing, the prosecutor stated that the parties had agreed he would be placed on five years formal probation and serve 120 days in county jail. The prosecutor further stated that the plea form would indicate that appellant had transported 13 grams of methamphetamine and possessed a digital scale. The prosecutor made it clear that there was no stipulation that appellant had transported the methamphetamine merely for personal use.
During the ensuing plea colloquy, the prosecutor stated: "And I do not know what your status is as far as citizenship in this country, but you need to understand that your conviction here today will now or later result in your deportation, removal, exclusion from admission or readmission to this country and denial of naturalization and citizenship. Do you understand that?" Appellant responded, "Yes."
Appellant's attorney joined in the plea and stipulated to the factual basis upon which it was based. On the written plea form, appellant acknowledged his understanding of the advisement regarding the immigration consequences of his plea, which was provided in both English and Spanish. The advisement states: "If I am not a citizen of the United States, I understand that the law concerning the effect of my conviction of a criminal offense of any kind on my legal status as a non-citizen will change from time to time. I hereby expressly assume that my plea of [] NO CONTEST in this case will, now or later, result in my deportation, exclusion from admission or readmission to the United States, and denial of naturalization and citizenship." At the end of the plea form, appellant signed a bold-type acknowledgement provided in both English and Spanish that states: "My attorney and the interpreter (if applicable) has gone over this form with me. I have read and understand this form. I understand the pleas and admissions I am entering, the consequences thereof and the constitutional rights I am waiving." Appellant's attorney signed the provision verifying that he had fully advised appellant of "the direct and indirect consequences of this plea" and that counsel was "satisfied he understands them."[2]
The court accepted appellant's no contest plea, found him guilty of transporting a controlled substance, and sentenced him in accordance with the plea bargain. On September 2, 2009, appellant filed a motion to withdraw his plea pursuant to Penal Code section 1018. Appellant's moving papers alleged that trial counsel had provided constitutionally ineffective assistance by (1) failing to adequately advise him of the immigration consequences of his plea; and (2) failing "to attempt to obtain a plea to a charge with less damaging immigration consequences."[3] Following a hearing on November 24, 2009, the court denied the motion. Appellant filed a timely notice of appeal, and the court granted his request for a certificate of probable cause.
DISCUSSION
Appellant contends the court erred in denying his motion to withdraw his plea under Penal Code section 1018 on the ground of ineffective assistance of counsel. We disagree.
Penal Code section 1018 provides in pertinent part that "[o]n application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may . . . , for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." We review the court's denial of appellant's motion to withdraw his plea for an abuse of discretion. (People v. Brown (2009) 175 Cal.App.4th 1469, 1472.)
Appellant's motion to withdraw his plea is premised on the claim that his trial attorney provided ineffective assistance by (1) failing to advise him of the immigration consequences of his plea, and (2) failing to seek to negotiate a plea to a lesser charge without adverse immigration consequences. To prevail on this claim, appellant had to demonstrate both deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 686-688.) Counsel's failure to advise a defendant of the adverse immigration consequences of a plea amounts to deficient performance under Strickland. (Padilla v. Kentucky (2010) __ U.S. __ [130 S.Ct. 1473, 1482-1485].) To demonstrate that counsel's deficient performance in this regard resulted in prejudice, a defendant must present objective evidence demonstrating that he or she otherwise would have rejected the plea bargain and insisted on a trial. (In re Resendiz (2001) 25 Cal.4th 230, 253, abrogated on another ground in Padilla v. Kentucky, supra, at p. 1484; In re Alvernaz (1992) 2 Cal.4th 924, 938.)
The court did not abuse its discretion in denying appellant's motion to withdraw his plea on the ground of ineffective assistance of counsel. Appellant's plea agreement included a detailed advisement regarding the immigration consequences of entering into the plea as well as appellant's statement, under penalty of perjury, that he had read and understood all of its provisions. Appellant's attorney also signed the acknowledgement indicating that he had fully advised appellant regarding the immigration consequences of his plea. Appellant offered nothing to controvert this evidence. He also declined the opportunity to call trial counsel as a witness in order to question him regarding the accuracy of his acknowledgement.[4]
The record is similarly lacking with regard to appellant's claim that trial counsel failed to seek a plea to a lesser charge. Appellant also failed to provide any evidence demonstrating that he would have rejected the plea deal and insisted on a trial had he received the advisement he claims was lacking. Because appellant failed to demonstrate that his plea was the result of ineffective assistance of counsel, the court did not abuse its discretion in denying his motion to withdraw his plea on that ground.
The order denying appellant's motion to withdraw his plea under Penal Code section 1018 is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
YEGAN, J.
James F. Iwasko, Judge
Superior Court County of Santa Barbara
______________________________
Alejandro Garcia for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, David A. Voet, Deputy Attorney General, for Plaintiff and Respondent.
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[1] All further undesignated statutory references are to the Health and Safety Code.
[2] The acknowledgment signed by appellant's attorney provides: "I am the defendant's attorney. I have explained to the defendant all of his constitutional rights. I believe he understands them and understands that by entering this plea he is giving up each of them. I have discussed with the defendant the facts of the case, the elements of the charged crime(s) and all possible defenses. I have explained the direct and indirect consequences of this plea to the defendant and I am satisfied he understands them. I am satisfied the defendant is voluntarily and of his own free will seeking to enter this plea. No promises have been made as to the sentence which have not been fully disclosed in his form. I personally went over this document with the defendant. I observed the defendant to read, date and sign this document and place his initials in the boxes. I concur in the plea and waiver of constitutional rights by the defendant."
[3] Appellant, a legal permanent resident of the United States, presented evidence in support of his motion indicating that removal proceedings have been initiated against him as a result of his conviction.
[4] Appellate counsel, who brought the motion on appellant's behalf, asserted below that appellant had signed a declaration stating he "was advised that a plea to the transportation charge would not have any problems with immigration and was advised against pleading to the possession for sale charge wherein the defense counsel did indicate that that would cause problems with immigration . . . ." As the People note, no such declaration appears in the record. Moreover, the opening brief makes no mention of a declaration and appellant did not file a reply brief. Accordingly, we assume that no declaration was ever offered. In any event, a defendant's uncorroborated, self-serving representations regarding his or her reasons for entering a plea do not establish ineffective assistance of counsel. (In re Alvernaz, supra, 2 Cal.4th at p. 945.)
