P. v. Smith
Filed 2/6/13 P. v. Smith 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
STEPHEN SMITH,
Defendant and
Appellant.
2d Crim. No.
B240125
(Super. Ct.
No. NA002335-02)
(Los
Angeles County)
Stephen Smith appeals an
order denying his motion to vacate his 1990 conviction for
felony. (Health & Saf. Code,
§ 11359.) We affirm.
We conclude, among other
things, that: 1) substantial evidence
supports the trial court's finding that Smith was advised of the immigration
consequences of his plea, 2) Smith failed to show his counsel provided
ineffective assistance, and 3) the court did not err by not holding an
FACTS
In 1990, the district
attorney filed an information charging Smith with possession of marijuana for
sale, a felony. (Health & Saf. Code,
§ 11359.) Pursuant to a negotiated
plea agreement, Smith pled guilty and was placed on probation for three years
on condition that he serve 180 days in county jail.
In 2011, Smith filed a
"non-statutory motion to vacate" that conviction. In his declaration, Smith said, "I pled
guilty in ignorance of immigration consequences." He said, "My defense attorney did not
ask me my immigration status"; "Nor did I tell the attorney that I'm
not a U.S.
citizen because I didn't realize that the criminal conviction would prevent me
from having permanent legal status."
He said, "Prior to pleading guilty, there was no discussion about
immigration consequences flowing directly from my plea." He claimed he "pled guilty in complete
ignorance" of the consequences.
In 2011, an immigration
attorney told Smith that "as a result of the conviction," he
"will likely be deported."
At the hearing on the motion,
Smith did not testify and he called no witnesses. His counsel requested the trial court to
"submit" the matter on Smith's declaration.
The trial court denied
the motion to vacate. It found Smith's
"version" is "contrary to what is set forth in the court
record" and that he received advisements on immigration consequences. It said even "assuming errors" by
his counsel, Smith did not show "a reasonable probability" of a
different result.
DISCUSSION
Substantial
Evidence Regarding Immigration Advisements
"[W]e must view the
evidence in the light most favorable" to the judgment and we "must
presume in support of the judgment the existence of every fact the trier [of
fact] could reasonably deduce from the evidence." (People
v. Smith (2005) 37 Cal.4th 733, 739.)
California law requires
that all defendants who enter pleas must receive the following immigration
consequences advisement: "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." (Pen.
Code, § 1016.5, subd. (a).)
"[S]ubstantial, not literal, compliance with section 1016.5 is
sufficient." (People v. Gutierrez (2003)
106 Cal.App.4th 169, 174.) The
immigration advisement is sufficient if it warns "the defendant expressly
of each of the three distinct possible immigration consequences of his
conviction[] . . . ."
(Id. at p. 173.)
In his declaration,
Smith said he pled guilty "in complete ignorance" of the immigration
consequences of his plea.
We granted the People's
motion to augment the record to include Smith's 1990 negotiated plea
agreement. In that document, Smith stated,
"I understand that if I am not a citizen of the United
States, the conviction for the offense
charged may have the consequences of deportation,
exclusion from admission to the
to the laws of the United States." (Italics added.) This immigration advisement was
sufficient. (People v. Gutierrez, supra,
106 Cal.App.4th at pp. 173-175; People v.
Panizzon (1996) 13 Cal.4th 68, 83.)
In addition, the June 28, 1990,
minute order reflects that before the trial court accepted his plea it advised
him of the "possible effects of plea" on his "alien/
citizenship" status. The court
could reasonably infer that these documents refuted Smith's claim about his
"complete ignorance" of the immigration consequences. (Gutierrez,
at pp. 175-176.)
Ineffective
Assistance
Smith claims the
evidence establishes that his trial counsel did not advise him of the
immigration consequences of his plea. He
contends the trial court erred by not vacating his conviction based on ineffective
assistance of counsel. We disagree.
To prove ineffective
assistance, a defendant must meet a two-pronged test by showing that: 1) counsel's performance was inadequate, and
2) there is a reasonable likelihood the result would have been different absent
the deficient performance. (
Smith relies on his
declaration. But the trial court did not
find Smith to be credible. We do not
decide credibility. That is a matter for
the trial court. (People v. Gutierrez,
161, 165.) The court found that Smith's
"version" of facts was "contrary to what is set forth in the
court record . . . ."
This finding is supported by the record.
The plea agreement was
signed by Smith and his trial counsel.
Smith initialed the immigration consequences advisement box on the
agreement and his trial counsel signed the following certification: "I am attorney of record and
defendant . . . . I
further stipulate this document
defendant's intelligent waiver of these rights, and that it should be filed
by the clerk as a permanent record of that waiver." (Italics added.) This supports the trial court's finding that
Smith's declaration was impeached by the documents in the record and that he
was advised of the consequences. (
Smith claims the
prosecution did not challenge his declaration.
He suggests the trial court consequently had to accept the statements he
made in that document. But the court may
reject the testimony or declaration of any party even if uncontradicted. (People
v. Surety Ins. Co. (1978) 77
Cal.App.3d 533, 536-537 [court may reject uncontradicted declarations];
29 Cal.2d 144, 149.) Here the trial
court had substantial reasons to distrust Smith's declaration. It was contradicted by his statements in his
plea agreement, by his counsel's certification in that document, and by the
1990 minute order.
In Padilla v. Kentucky (2010) 130 S.Ct. 1473, 1484, the Supreme Court
held, "It is quintessentially the duty of counsel to provide [the] client
with available advice about an issue like deportation and the failure to do so
'clearly satisfies the first prong of the Strickland
analysis.'" It noted that in
1996 Congress amended federal immigration law to eliminate "the Attorney
General's authority to grant discretionary relief from deportation" for
certain "removable" offenses.
(Id. at p. 1480.) Consequently, "if a noncitizen has
committed a removable offense after the
1996 effective date of these amendments, his removal is practically
inevitable . . . ."
(Ibid., italics added.) But Smith's guilty plea was entered in
1990. At that time, his counsel could
not have known that Congress would restrict the Attorney's General's authority
to grant discretionary relief from deportation six years later.
The People note that
several courts have held Padilla is
not retroactive. (See, e.g.,
2011) 671 F.3d 1147, 1150.) True, but in
United States v. Orocio (3d Cir.
2011) 645 F.3d 630, 641, the Third Circuit held it was retroactive. Both Orocio
and Padilla, however, involved pleas
that occurred years after the 1996
immigration law amendments. Smith's plea
agreement was filed six years before
the new immigration law. Moreover, one
court has held that a claim of ineffective assistance for nonadvisement of
immigration consequences may not be decided years after a final judgment in a
"nonstatutory motion to vacate."
(People v. Shokur (2012) 205
Cal.App.4th 1398, 1402-1406.) It must be
raised in a habeas proceeding. (
But even assuming Padilla is
retroactive and that Smith's motion may be considered on the merits, the result
does not change.
The trial court found
that even if Smith had met the first Strickland
prong, he did not meet his burden to present evidence to show prejudice. (Padilla
v. Kentucky, supra, 130 S.Ct at
pp. 1483-1485, 1487; People v. Totari
(2002) 28 Cal.4th 876, 884.) The People
correctly note that in his declaration Smith did not claim that he would not
have pled guilty if he knew the immigration consequences. Yet even had he made such a statement, it
would not be sufficient unless Smith proved "that a decision to reject the
plea bargain would have been rational under the circumstances." (Padilla
v. Kentucky, supra, 130 S.Ct. at
pp. 1485, 1487; see also In re Alvernaz
(1992) 2 Cal.4th 924, 938 [defendant's self-serving claim about a plea bargain
had to be "corroborated by objective evidence"].) But Smith presented no evidence about
prejudice at the hearing. Smith did not
testify; he relied on his declaration.
But the court could find it did not contain sufficient facts on
prejudice. The People note Smith did not
state that he had any defenses to the charged offense. Smith's counsel told the court that she sent
a letter to Clive Martin, Smith's former attorney. But she did not subpoena him to the
hearing. Nor was there an offer of proof
at that hearing about the strength of the prosecution's evidence or the
probability of prevailing had the case gone to trial in 1990. There was no showing that Smith's former
counsel had either said anything to undermine the immigration advisements in
the plea agreement or that he had not carefully evaluated the risks of a
conviction at trial.
Moreover, in the plea
agreement, Smith said, "I am pleading guilty to take advantage of a plea bargain." (Italics added.) "I have discussed the charge[s], the
facts and the possible defenses with my attorney." In that agreement, Smith's counsel said,
"[H]aving explored the facts
with him . . . and studied his . . . possible defenses to the
charges(s), I concur in his . . . decision to waive the above rights
and to enter a plea of guilty."
(Italics added.) That supported a
finding that Smith made an intelligent and voluntary plea. The People note that his plea agreement was
"a favorable deal," because instead of the possibility of a state
prison sentence with "the same immigration consequences," he was
placed on probation. The trial court
could reasonably find that Smith did not meet his burden on the second
v. Kentucky, supra, 130 S.Ct. at
pp. 1483-1484; Strickland v.
28 Cal.4th at p. 884.)
Lack
of an Evidentiary Hearing
Smith claims the trial
court should have held an evidentiary
hearing. But at the hearing on the
motion to vacate, Smith did not request to testify. His counsel did not request permission to
call witnesses or request an evidentiary hearing. Instead, Smith's counsel asked the court to
"submit" the matter on his declaration. The court relied on this representation and
took the motion under submission. Smith
consequently is estopped to claim the court erred by not holding an evidentiary
hearing. (People v. Level (2002) 97 Cal.App.4th 1208, 1213;
549, fn. 3.)
We have reviewed Smith's
remaining contentions and we conclude he has not shown error.
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
James
D. Otto, Judge
Superior
Court County of Los Angeles
______________________________
Law Office of Kiran
Nair, Kiran K. Nair for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Victoria B. Wilson, Steven D.
Matthews, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
