Filed 6/1/18 P. v. Saldana CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR HUGO SALDANA,

Defendant and Appellant.
D072800



(Super. Ct. No. SCD261102)

APPEAL from a postjudgment order of the Superior Court of San Diego County, Michael S. Groch, Judge. Affirmed.

The Law Office of Jordan H. Schweller and Jordan H. Schweller for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Victor Hugo Saldana appeals from a postjudgment order denying his motion under Penal Code section 1473.7 to vacate his conviction for transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); hereafter § 11379(a)) for other than personal use (Pen. Code, § 1210, subd. (a)). Saldana's conviction was the product of a guilty plea, and he contends the trial court abused its discretion in denying his motion to vacate the conviction because he established by a preponderance of the evidence his trial counsel had not adequately advised him of the adverse immigration consequences of the plea.
We conclude Saldana has not established either that his counsel misadvised him or that any incorrect advice prejudiced him. We, therefore, affirm the order.
II
BACKGROUND
A
1
At the time of Saldana's guilty plea, there was a second criminal case pending against him. The second case alleged two counts of possessing controlled substances for sale and one count of cultivating marijuana. Saldana agreed to plead guilty in the instant case to transportation of methamphetamine for other than personal use in exchange for the prosecution's dismissal of the second case and agreement not to oppose a sentence with local custody time.
2
Before entering the guilty plea, Saldana signed and initialed a guilty plea form containing numerous advisements. One advisement informed him, "I understand that if I am not a U.S. citizen, this plea of Guilty/No Contest may result in my removal/deportation, exclusion from admission to the U.S. and denial of naturalization. Additionally, if this plea is to an 'Aggravated Felony' listed on the back of this form, then I will be deported, excluded from admission to the U.S., and denied naturalization."
The page of the guilty plea form entitled "Aggravated Felonies" further stated, "ANY CONVICTION OF A NON-CITIZEN FOR AN 'AGGRAVATED FELONY' ... WILL RESULT IN REMOVAL/DEPORTATION, EXCLUSION, AND DENIAL OF NATURALIZATION." The form then identified a nonexclusive list of aggravated felonies, which included "TRANSPORTATION OF ANY CONTROLLED SUBSTANCE." The list also included possession of any controlled substance for sale and cultivation of marijuana.
At the end of the guilty plea form, Saldana, who is fluent in English, initialed and signed his name beneath the statement, "I declare under penalty of perjury that I have read, understood, and initialed each item above and any attached addendum, and everything on the form and any attached addendum is true and correct." Saldana's trial counsel also signed the form beneath the statement, "I, the attorney for the defendant in the above-entitled case, personally read and explained to the defendant the entire contents of this plea form and any addendum thereto. I discussed all charges and possible defenses with the defendant, and the consequences of this plea, including any immigration consequences. I personally observed the defendant fill in and initial each item, or read and initial each item to acknowledge his/her understanding and waivers. I observed the defendant date and sign this form and any addendum. I concur in the defendant's plea and waiver of constitutional rights."
3
At the beginning of the plea colloquy, the court reviewed the guilty plea form with Saldana:
"THE COURT: I see the agreement you've reached with the People is you're going to plead guilty to count one, that's a felony violation of [s]ection 11379(a), selling or furnishing controlled substances, and you're going to admit the allegation pursuant to Penal Code section 1210. Is there an amended [complaint], I don't see that?

"[PROSECUTOR]: There isn't, your Honor. The People would ask for the [Penal Code section] 1210 allegation to be added by interlineation.

"THE COURT: Any objection?

"[DEFENSE COUNSEL]: No, your Honor.

"THE COURT: All right. Then you're going to admit the [Penal Code section] 1210 allegation attached to count one that this was not for personal use. The [prosecutor] has agreed to dismiss [the second case] in its entirety and ... to a grant of formal probation in this case .... The court has indicated there's no promises. ... Is that your understanding of the agreement that's been reached?

"[SALDANA]: Yes."

The court then confirmed no one had promised Saldana anything else or had pressured him to plead guilty. After also confirming that Saldana's initials, signature, and thumbprint were on the guilty plea form, the court asked:
"THE COURT: Before you signed the [guilty plea] form, did you read it entirely and understand it completely?

"[SALDANA]: Yes, sir.

"THE COURT: Did you discuss your case with your attorney, including the elements of the offense and any possible defenses and all consequences of pleading guilty?

"[SALDANA]: Yes, sir.

"THE COURT: Did he answer all your questions?

"[SALDANA]: Yes, sir."

After advising Saldana and obtaining his acknowledgment of the constitutional rights he was giving up and the maximum punishment he could receive as a result of his guilty plea, the court next informed Saldana:
"THE COURT: If you are not a U.S. citizen, your plea today will result in your removal or deportation or exclusion from admission or denial of naturalization. Do you understand that?

"[SALDANA]: Yes, sir."
Saldana subsequently pleaded guilty to violating section 11379(a), and admitted the Penal Code section 1210 allegation (not-for-personal-use allegation). As the factual basis for his plea, he acknowledged he transported methamphetamine for other than personal use. Saldana's counsel concurred in the entry of the guilty plea and the court accepted it, finding it had been knowingly, intelligently, and voluntarily made.
B
Before sentencing, Saldana filed a motion under Penal Code section 1016.5 to withdraw his guilty plea, arguing there was good cause to allow him to withdraw the plea because he was not provided an opportunity to stop the plea colloquy and ask questions about the immigration consequences of the plea. He also argued the court incorrectly advised him the plea will result in immigration consequences instead of may result in such consequences.
In support of the motion, Saldana submitted a declaration stating, before he pleaded guilty, he voiced concerns about the plea's immigration consequences to his trial counsel, who assured him the transportation charge was "gray enough" to allow the immigration consequences to be successfully fought. His trial counsel did not review the guilty plea form with him in depth and, when he again expressed concern about the plea's immigration consequences after the prosecutor required him at the last minute to admit the not-for-personal-use allegation, his trial counsel told him to agree to the allegation, sign the form, and not worry about it. Although he had questions after the court stated during the plea colloquy that he would be deported, he did not know he could stop the proceedings and ask questions. After his guilty plea, he consulted with an immigration attorney and learned the not-for-personal-use allegation was the worst possible language to be included in his guilty plea in terms of immigration consequences. Had he known this, he would not have pleaded guilty.
Trial counsel also submitted a supporting declaration, stating he had continued the trial court proceedings at least five times to research the immigration consequences of the guilty plea. He consulted with an immigration attorney who told him pleading guilty to the transportation charge would give Saldana the best "fighting chance" with regard to the immigration consequences. He did not anticipate the not-for-personal-use allegation would have an adverse impact on immigration proceedings.
The court denied the motion, finding Saldana had not established by clear and convincing evidence there was good cause for him to withdraw his guilty plea. More particularly, the court found he had been adequately advised of the immigration consequences of the plea, he had the opportunity between court hearings to consult with an immigration expert, and he had several opportunities throughout the plea colloquy to ask questions when the court asked him whether he understood various points.
Saldana appealed his conviction, contending we should reverse the court's order because the court abused its discretion in denying the plea withdrawal motion. We rejected this contention and affirmed the order. (People v. Saldana (Aug. 18, 2016, D069262) [nonpub. opn.].)
C
The day after Saldana's sentencing hearing, the United States Department of Homeland Security issued a notice for Saldana to appear in removal proceedings. The notice alleged Saldana was subject to removal because he was convicted of violating a state law relating to a controlled substance, other than a single offense involving possession for one's own use of 30 grams or less of marijuana. (8 U.S.C. § 1227(a)(2)(B)(i).) The notice also alleged he was subject to removal because he was convicted of an aggravated felony relating to the illicit trafficking of a controlled substance. (Id., § 1227(a)(2)(A)(iii).)
D
Saldana subsequently filed a motion under recently enacted Penal Code section 1473.7 to vacate his conviction. In his motion, he asserted his conviction was invalid because his trial counsel did not adequately investigate the immigration consequences of the guilty plea, did not accurately advise him of the immigration consequences of the plea, and did not attempt to obtain an immigration-safe plea bargain. He also asserts his trial counsel failed to move for a continuance after the prosecution added the not-for-personal-use allegation to the complaint, depriving Saldana of sufficient time to knowingly understand the immigration consequences of the allegation.
1
In support of the motion, Saldana submitted his and his trial counsel's declarations from the previous plea withdrawal motion. He also submitted a new declaration parroting his declaration from the previous plea withdrawal motion.
At the hearing on the motion, Saldana testified he told his trial counsel he would not accept any guilty plea that would affect his immigration status and would instead go to trial. His trial counsel told him pleading guilty to violating section 11379(a) would not affect his immigration status because there was a gray area that would allow him to argue the offense was not an aggravated felony for immigration purposes. He understood this to mean pleading guilty to the offense would not lead to his deportation.
Saldana further testified he did not know in what case or to which charge he was pleading guilty. He reviewed the guilty plea form with his trial counsel before he agreed to plead guilty to the transportation charge. However, after the not-for-personal-use allegation was added, he spent only 30 seconds to two minutes in the hallway reviewing the form before the guilty plea hearing. He did not have a chance to read through the form, he did not see the list of aggravated felonies on the back of it and, if he read any of the paragraphs he initialed, he did not fully understand them.
Saldana additionally claimed his trial counsel never explained the immigration consequences of the not-for-personal-use allegation. When Saldana asked about the immigration consequences, his trial counsel told him not to worry, it was a gray area, and it was not going to affect his immigration status. When the court stated his guilty plea would result in his deportation, he looked over to his trial counsel in panic and his trial counsel told him, "It's okay." "Go ahead. This is what we're looking for." "Accept it, and just proceed."
Although Saldana consulted with an immigration attorney before he pleaded guilty, he did not discuss the not-for-personal-use allegation with the attorney. When he accepted the plea bargain, he did not understand the implications of admitting the not-for-personal-use allegation or that he was going to be an aggravated felon. Had he known the immigration consequences of the plea bargain, he would have gone to trial or tried to negotiate a different plea.
2
Saldana's trial counsel testified he discussed everything in the guilty plea form with Saldana, including the list of aggravated felonies, and allowed Saldana time to ask questions about it. Before the guilty plea hearing, he had continued the criminal proceedings at least five times in part to research the immigration consequences of his guilty plea and to try to get Saldana a better deal. He also consulted with an immigration attorney, who told him pleading guilty to violating section 11379(a) would give Saldana the best opportunity to fight any future immigration case. After the prosecutor insisted Saldana admit the not-for-personal-use allegation, trial counsel did not ask for another continuance, but he consulted with the immigration attorney about the insertion of the language into the agreement. He believed the guilty plea was still Saldana's best alternative. He never said Saldana would not be deported or would be free of any immigration consequences if Saldana pleaded guilty to violating section 11379(a). Rather, he said there would most likely be immigration consequences, although he did not know precisely what they would be, and he referred Saldana to the immigration attorney.
3
An immigration attorney testified that at the time of Saldana's violation of section 11379(a), the statute potentially encompassed transportation for personal use, which is not an aggravated felony for immigration purposes. By including the not-for-personal-use allegation in Saldana's guilty plea, Saldana was precluded from arguing in removal proceedings his offense was only for personal use and, therefore, not an aggravated felony.
4
The court denied the motion, finding Saldana had not established "by a preponderance of the evidence, that a prejudicial error occurred which damaged his ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty." The court explained, "This was not a case where an attorney was shooting from the hip, unaware of the potential immigration consequences and ill-advising his client. [¶] Quite the contrary. The evidence showed that this case was continued five times, at least in part as defense counsel continued to explore immigration consequences, that defense counsel ... consulted on several occasions with an immigration expert, that [defense counsel] referred his client to [an immigration attorney] to meet independently, ... and that the defendant then had the ability to contact the immigration attorney independently, if he wished.
"As I look at the [guilty plea] form, ... I do note that he is informed ... in writing, that ... if he pleads to an aggravated felony he will be deported. [¶] I note on the [guilty plea] form the word 'will' is in bold on the back of [the] form. ... [U]nder 'AGGRAVATED FELONIES,' it's listed in bold and all caps, TRANSPORTATION OF ANY CONTROLLED SUBSTANCE. [¶] The [c]ourt did orally advise the defendant, on the record, that his plea will—not 'may,' but 'will' result in deportation.
"So he was informed orally by the judge taking his [guilty] plea, he was informed in writing, which he acknowledged with his initials and signature, he had multiple opportunities to consult, as needed, and was given multiple opportunities—namely, multiple continuances. [¶] Based on those factors, the defendant's motion is denied."
III
DISCUSSION
A
Saldana contends the court abused its discretion in denying his motion to vacate his conviction. The People do not dispute the abuse of discretion standard governs our review of the court's decision. When applying the abuse of discretion standard, we review the court's findings of fact for substantial evidence, its conclusions of law de novo, and its application of the law to the facts for arbitrariness and capriciousness. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711–712, fns. omitted.)
B
Penal Code section 1473.7 permits a person no longer imprisoned or restrained to prosecute a motion to vacate a conviction for one of two reasons: (1) "[t]he conviction ... is legally invalid due to a 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" or (2) "[n]ewly discovered evidence of actual innocence exists that requires vacation of the conviction ... as a matter of law or in the interests of justice." (Id., subd. (a).) The motion must be made with reasonable diligence after the party receives notice of pending immigration proceedings or a removal order. (Id., subd. (b).) The court must hold a hearing on the motion, and if the moving party establishes by a preponderance of the evidence that he or she is entitled to relief, the court must allow the person to withdraw his or her plea. (Id., subds. (d) & (e); People v. Perez (2018) 19 Cal.App.5th 818, 824.)
Saldana bases his entitlement to relief under Penal Code section 1473.7 on his assertion his trial counsel provided ineffective assistance by failing to properly advise him of the immigration consequences of admitting the not-for-personal-use allegation. A defendant who seeks to vacate a conviction on the ground of ineffective assistance of counsel must establish (1) that counsel's performance was deficient in that it fell below an objective standard of reasonableness and (2) that he or she was prejudiced by that deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687–688; People v. Patterson (2017) 2 Cal.5th 885, 900 (Patterson).)
1
Regarding the first prong, defense attorneys have an affirmative obligation to provide competent advice to noncitizen criminal defendants regarding the potential immigration consequences of guilty or no contest pleas. (Padilla v. Kentucky (2010) 559 U.S. 356, 375 (Padilla); see Pen. Code, § 1016.3, subd. (a).) Saldana asserts his trial counsel breached this obligation by mistakenly leading him to believe his guilty plea, including the not-for-personal-use allegation, would not have any immigration consequences and, more particularly, would not prevent him from successfully challenging removal proceedings. Saldana's trial counsel provided conflicting evidence on this point, stating he specifically informed Saldana the guilty plea would have immigration consequences, although he did not know precisely what those immigration consequences would be. Nonetheless, after researching the matter and consulting with an immigration attorney, he believed and advised Saldana that the guilty plea, even with the not-for-personal-use allegation, was Saldana's best alternative under the circumstances. The trial court impliedly credited trial counsel's representations over Saldana's and there is substantial evidence to support the court's credibility finding, including Saldana's admissions on the guilty plea form and during the plea colloquy.
Moreover, trial counsel's advice appears correct given the complexities and uncertainties of immigration law. With or without the admission to the not-for-personal-use allegation, Saldana's conviction subjected him to removal. Without the admission, the conviction qualifies as a controlled substance offense and is a ground for removal under title 8 United States Code section 1227(a)(2)(B)(i). (Hernandez-Aguilar v. Holder (9th Cir. 2010) 594 F.3d 1069, 1073.) With the admission, the conviction also qualifies as an aggravated felony illicit drug trafficking offense (see fn. 1, ante) and is a ground for removal under title 8 United States Code section 1227(a)(2)(A)(iii). A key distinction between the two grounds for removal is that a person convicted of an aggravated felony is precluded from obtaining relief from removal through asylum, cancellation of removal, or voluntary departure. (Id., §§ 1158(b)(2)(B)(i), 1229b(a)(3), 1229c(a)(1).) However, these bases for relief are discretionary and there is no information in the record indicating Saldana was a likely candidate for any of them. Absent a showing by the preponderance of the evidence his trial counsel provided incorrect legal advice about immigration consequences that his trial counsel could have readily determined from reading the removal statute, Saldana has not satisfied the first prong of the Strickland test. (Padilla, supra, 559 U.S. at pp. 368–369.)
2
Even if Saldana had satisfied the first prong of the Strickland test, to satisfy the second prong, he had to show by a preponderance of the evidence that, if properly advised, he would not have entered the plea bargain. (People v. Martinez (2013) 57 Cal.4th 555, 559, 567 (Martinez); Patterson, supra, 2 Cal.5th at p. 901.) 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, 198 L.Ed.2d 476] (Lee).) In making this determination in the context of a guilty plea involving immigration consequences, courts must consider the likelihood of success at trial, the potential consequences after a trial compared to the consequences flowing from the guilty plea, and the importance of immigration consequences to the defendant. (See Lee, supra, at pp. 1966–1967; see Martinez, supra, at pp. 564, 568.)
Nonetheless, " '[s]urmounting 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, ___ U.S at p. ___ [137 S.Ct. at p. 1967]; see Martinez, supra, 57 Cal.4th at p. 565 ["[T]he defendant bears the burden of establishing prejudice" and "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."].)
In this case, Saldana did not present any evidence or argument on the likelihood of his success at trial and the record is not adequate for us to assess this factor. Saldana also did not present any evidence or argument on the potential consequences after a trial compared to the consequences flowing from the guilty plea. However, as we previously noted, all of the charges against Saldana at the time of his guilty plea were for deportable controlled substance offenses and at least two of them were for illicit drug trafficking aggravated felonies. Thus, had he been convicted, he would still have been subject to removal proceedings and may have had multiple aggravated felonies. He also would be subject to a lengthy jail or prison sentence. By pleading guilty, Saldana avoided a lengthy sentence and had only one conviction, not four, to challenge in removal proceedings.
Lastly, there is little doubt the immigration consequences of Saldana's guilty plea were important to him. His trial counsel continued the criminal proceedings at least five times in part to research immigration consequences, consult with an immigration attorney, and obtain the most favorable disposition for Saldana in light of the immigration consequences. Indeed, the United States Supreme Court has recognized, "[d]eportation is always 'a particularly severe penalty,' [citation], and ... ' "preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence." ' " (Lee, supra, ___ U.S at p. ___ [137 S.Ct. at p. 1967].)
Nevertheless, Saldana was willing to enter a guilty plea with immigration consequences because he was prepared to plead guilty to violating section 11379(a) without admitting the not-for-personal-use allegation. Saldana knew his guilty plea had immigration consequences as he was informed of this by his trial counsel, the guilty plea form, and the court. He also acknowledged in open court and in writing that he had read, understood, and did not have any questions about the immigration consequences portion of the guilty plea form.
Despite Saldana's contrary assertions, which the trial court implicitly found incredible, Saldana received no assurance he would be able to successfully challenge the immigration consequences of this plea. His trial counsel denied providing such assurances and none of his other counsel have expressed such assurance. Although admitting the not-for-personal-use allegation eliminated some avenues for him to seek relief from removal, he has not provided any evidence indicating the elimination of these avenues appreciably changed his prospects of successfully challenging the removal proceedings. Accordingly, he has not established his trial counsel's allegedly deficient performance prejudiced him or, concomitantly, that the trial court abused its discretion in denying his motion to vacate the conviction.
IV
DISPOSITION
The order is affirmed.



McCONNELL, P. J.

WE CONCUR:




HUFFMAN, J.




GUERRERO, J.