P. v. Richey



















Filed 4/8/13 P. v. Richey 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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opinion has not been certified for publication or ordered published for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



FOURTH
APPELLATE DISTRICT



DIVISION
THREE




>

THE PEOPLE, Plaintiff and Respondent, v. MARIA ROSARIO TORRES RICHEY, Defendant and Appellant.

G046919 (Super. Ct. No. 11HF2339) O P I N I O N

Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Craig

E.
Robison, Judge. Affirmed.

Zulu Ali for Defendant
and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Meagan Beale and Kathryn Kirschbaum,
Deputy Attorneys General, for Plaintiff and Respondent.



Appellant is an
undocumented immigrant who is facing the prospect of deportation to her native
country, Mexico. Working on the assumption this prospect arose
because she pleaded guilty to a deportable
offense, appellant claims she should be allowed to withdraw her plea
because her attorney failed to warn her it would result in her being deported. However, the record shows appellant was
adequately advised of the consequences of her plea. It also shows she was subject to deportation
irrespective of her plea due to her status as an undocumented immigrant. Therefore, the trial court properly denied
her motion to withdraw her plea.

FACTS

On
September 15, 2011,
appellant was charged in a felony complaint with six counts of commercial
burglary and one count each of receiving stolen property and possessing
methamphetamine. She was arraigned the
same day and entered a plea of not guilty to all of the charges. The minute order from the arraignment hearing
states, “Defendant has a Bureau of Immigration and Customs Enforcement [(ICE)]
hold.”

On
September 23, 2011,
appellant entered into a written plea
agreement with the prosecution.
Pursuant to the agreement, appellant agreed to plead guilty to one count
of commercial burglary, plus the receiving and possession charges, in exchange
for having the remaining charges dismissed.
Appellant faced a maximum prison sentence of four years and four months
under the agreement, but probation was designated as the “proposed disposition.”

The
plea agreement also specified that, by pleading guilty, appellant was giving up
certain rights and exposing herself to several detrimental consequences. Under the heading of “Immigration
consequences,” the agreement states, “I understand that if I am not a citizen
of the United States
the conviction for the offense(s) 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.”

Appellant
signed her initials next to this advisement.
At the end of the agreement, she also initialed and signed a provision
which states: “I declare under penalty
of perjury I have read, understood and personally initialed each numbered item
above, and I have discussed them with my attorney.”

Appellant’s
attorney also signed the agreement, attesting “I have explained to defendant
each of the rights set forth on this form.
. . . I have discussed the
possible sentence ranges and immigration consequences with defendant.”

The
plea hearing was held on September 23,
2011, the same day the plea agreement was executed. At the hearing, appellant acknowledged to the
court that she had read, initialed and signed the agreement and that she had
reviewed it with her attorney. When the
court asked her “do you understand that if you’re not a United
States citizen conviction does have the
consequence of deportation, exclusion from admission or denial of
naturalization or amnesty pursuant to the laws of the United
States,” appellant answered, “Yes,
sir.”

After
appellant further acknowledged that she was “pleading guilty freely and
voluntarily because [she was] in fact guilty,” the court accepted her guilty
plea. In so doing, the court found that
appellant had been “fully advised of the consequences of [her] plea.”

Sentencing was put over
until November 18, 2011,
at which time the court suspended imposition of sentence and placed appellant
on supervised probation. As a condition
of probation, appellant was ordered to serve 180 days in jail and report to her
probation officer within 72 hours of her release from custody.

However,
appellant never had an opportunity to report because on January 9, 2012, an agent with the Department of
Homeland Security took her into custody and served her with notice she was
subject to removal, i.e., deportation, under the Immigration and Nationality
Act. The notice alleged: 1) Appellant is a citizen of Mexico and not the
United States; 2) she lawfully entered the United States on July 4, 1996, with
authorization to stay in the country until July 31, 1996; and 3) she stayed in
the United States beyond that date without authorization. The stated basis for appellant’s removal was
that she “remained in the United States
for a time longer than permitted[.]” The
notice did not say anything about her plea or conviction in the present
case.

One
month later, on February 9, 2012,
newly-retained defense attorney Zulu Ali filed a motion to allow appellant to
withdraw her guilty plea. Mr. Ali
claimed appellant was being deported because she pleaded guilty to an
aggravated felony, which requires mandatory deportation under the Immigration
and Nationality Act. Mr. Ali further
asserted that, had appellant known her guilty plea would result in mandatory deportation,
she would have rejected the plea agreement and tried to strike a deal involving
a nondeportable offense.

Appellant submitted an
accompanying declaration saying as much.
She admitted she was a citizen of Mexico
and did not have authorization to be in the United
States.
However, she failed to recognize that was the basis for her pending
deportation. Instead, she blamed her
immigration woes on her attorney for failing to advise her about the consequences
of her guilty plea, one of which she assumed was “mandatory deportation.”

The
trial court wasn’t buying it. It not
only found appellant was adequately advised of the consequences of her plea, it
also determined she failed to prove she was prejudiced by anything her attorney
did or did not do. Therefore, it denied
appellant’s motion to withdraw her plea.


DISCUSSION

Appellant’s
brief, submitted by the aforementioned Mr. Ali, is suffused with the idea that
appellant was not adequately informed — not by the court, not by her attorney,
and not through her plea agreement — that she was subject to deportation. The brief also assumes appellant’s guilty
plea is the cause of her current immigration troubles. Neither supposition is correct.

As
to the first point, Mr. Ali repeatedly asserts the trial court did not give
appellant “any advisal of the immigration consequences of her plea . . .
.” (Appellant’s opening brief, p. 11;
see also p. 13 [appellant “was given no advisal by the (trial court) regarding
immigration.”].) However, the truth of
the matter is, the trial court specifically admonished appellant on this
point. In fact, as set forth above, the
court told appellant that if she was not a citizen of the United States,
“conviction does have the consequence of deportation.” This admonishment went beyond the standard
admonishment that trial judges are required to give when accepting a guilty
plea. (See Pen. Code, § 1016.5
[trial court need only advise the defendant that conviction “may” result in
deportation if they are not a citizen].)


Appellant’s
plea agreement makes clear that her attorney also went over the immigration
consequences of her plea with her.
Indeed, both appellant and her attorney attested to this fact on the
agreement. Appellant claims she didn’t
have sufficient time to digest this information because she entered her plea
the same day she signed the plea agreement.
However, appellant did not so claim in her declaration in the trial
court. Instead, she alleged her attorney
was remiss for failing to advise her she was pleading guilty to a deportable
offense.

That
brings us to an even bigger problem for appellant. Appellant assumes she is being deported
because of her guilty plea, but the notice from the Department of Homeland
Security shows she is being deported because she was not legally in the United
States to begin with. Irrespective of
which particular offenses she pleaded guilty to, or even whether she pleaded
guilty at all, she would still be subject to deportation due to her status as
an undocumented immigrant. Therefore, we
fail to see how she could have been prejudiced by her attorney’s actions.

In
Padilla v. Kentucky (2010) 559 U.S.
356, 130 S.Ct. 1473, the high court ruled a legal resident of the United States
may challenge his guilty plea for lack of proper advisal if the plea itself
triggers deportation. However, unlike the defendant in Padilla, appellant is an undocumented immigrant and is “deportable
for that reason alone. In fact, ICE had
placed an immigration hold on [her] prior to [her] guilty plea[]. Therefore, even if counsel failed to advise
[her] about the effect of [her] guilty plea[] on [her] deportability, [she]
cannot show prejudice because [she] cannot demonstrate that [her] deportability
status was a consequence of [her] guilty plea[].” (Rigoberto
v. State (Tenn.Crim.App. 2012) slip opn. at p. 6, 2012 WL 6115530, citing
numerous federal opinions to that effect.)

Absent a
showing of prejudice, appellant cannot prevail on her claim for ineffective
assistance of counsel. (>Padilla v. Kentucky, supra, 559 U.S. at
p. ___, 130 S.Ct. at p. 1487; >In re Resendiz (2001) 25 Cal.4th 230,
253-254.) Because the record shows she
was adequately advised of the immigration consequences of her guilty plea, and
she was subject to deportation regardless of her plea, she is not entitled to
relief.href="#_ftn1" name="_ftnref1" title="">[1]

DISPOSITION

The
trial court’s order denying appellant’s motion to withdraw her guilty plea is
affirmed.





BEDSWORTH,
J.

WE CONCUR:







RYLAARSDAM, ACTING P. J.







IKOLA, J.