P. v. Bravo

Filed 6/17/08 P. v. Bravo CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. John S. Fisher, Judge. Affirmed.

Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Mary Sanchez, Deputy Attorneys General, for Plaintiff and Respondent.

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Ruben Bravo appeals from the denial of his motion to withdraw his 1994 plea of no contest to charges of attempted murder and possession of a weapon while in jail. Appellant contends that the sentencing court in 1994 did not advise him of the immigration consequences of his plea as required under Penal Code section 1016.5, and therefore the plea must be vacated.[1] We conclude that appellant did not establish that he was prejudiced by the lack of an immigration consequences advisement prior to his 1994 plea. Accordingly, we affirm.

BACKGROUND

In 1994, appellant pled no contest to charges of attempted murder, ( 664, 187, subd. (a)), and possession of a weapon in prison ( 4574, subd. (a)). Appellant also admitted the enhancement of personal use of a firearm ( 12022.5, subd. (a)). The charges arose from a 1993 shooting. In May 1993, a member of the 18th Street gang was the victim of a drive-by shooting. The victim and an eyewitness told police that two Hispanic males drove by in a gray or silver Camaro, stopped the car, and the passenger got out and shot the victim. Police collected two spent .25-caliber casings from the scene. Around 30 minutes after the shooting, police apprehended appellant and another man (Lopez) in a silver Camaro. Police found a .25-caliber semi automatic handgun in the car. The ammunition in the gun matched both the caliber and brand of the spent casings collected at the scene of the shooting. Police then took the eyewitness to identify the car and its occupants. The witness positively identified the vehicle, and stated that, although she was not sure, she believed that appellant had been driving, and Lopez was the shooter. Appellant subsequently tested positive for gunshot residue, but Lopez did not. Appellant was a known member of the Vineland Boys gang, a rival of the 18th Street gang, and police suspected the shooting was payback for a previous episode of violence in which an 18th Street gang member shot and killed one of the Vineland Boys.

The prosecution charged appellant with willful, premeditated, and deliberate attempted murder, enhanced by a charge of personal use of a firearm; obliterating identifying markings from a firearm; and possession of a shank while in jail. Appellant faced a maximum sentence of life in prison plus 12 years if convicted. Rather than proceed to trial, appellant pled no contest to the attempted murder charge and the prosecution struck the willful, premeditated, deliberate allegation. Appellant also admitted the special allegation that he had personally used a firearm, and pled no contest to the possession of a weapon in jail charge. In January 1994, appellant was sentenced to 14 years in prison.

Appellant had lived in the United States since he was just over 13 months old and had been a legal permanent resident since 1987. However, when appellant was released in 2002, he was paroled directly to the United States Immigration and Naturalization Service (INS) and deported to Mexico. Appellant returned to the United States illegally and was arrested in December 2002 for possession of methamphetamine. In 2003, while awaiting trial on the possession of methamphetamine charge, appellant was arrested again for possession of methamphetamine. Appellant eventually pled no contest to a felony violation of possession of methamphetamine and was sentenced to 16 months in state prison. Upon his release in 2004, INS again deported appellant to Mexico. When appellant returned to the United States in 2005, federal authorities apprehended him and charged him with illegal re-entry.

In 2006, appellant filed a motion to vacate his 1994 plea. In a declaration accompanying the motion, appellant stated that the sentencing court in 1994 had not advised him of the immigration consequences of his plea. Appellant declared that he never would have agreed to plead no contest had he known that it would result in his exclusion from the United States, and he would have instead exercised his right to a jury trial. Appellant stated that he had no immediate family in Mexico, but his wife, two small children (ages 8 months and 2), stepdaughter (age 6),[2]parents, brother, grandfather, and several cousins all live in the United States and are citizens or legal permanent residents.

By 2006, the transcript memorializing appellants 1994 no contest plea had been destroyed. Only a pre-printed minute order from the proceedings indicated that appellant was advised of possible effects of plea on any alien/citizenship/probation/parole status. In January 2007, the trial court held an evidentiary hearing on appellants motion to vacate the plea. Appellant testified that he did not recall if the judge or the prosecutor asked him any questions at his 1994 sentencing, if his rights were read to him before he pled no contest, or if the judge or prosecutor told him that he was facing life in prison based on the charges alleged against him. However, he was able to affirmatively state that no one ever told him about the immigration consequences of his plea. Respondent argued that appellant did not exercise reasonable diligence in filing the motion to vacate, and that appellant had not established that he was prejudiced by the lack of a proper section 1016.5 advisement.

The trial court found the appellant not credible, and denied appellants motion on all legal grounds. This appeal followed.

DISCUSSION

Section 1016.5, subdivision (a), provides: 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. Under subdivision (b), if the court does not give such an advisement, and the defendant shows that his plea may have any of the adverse immigration consequences set forth in the statute, the defendant may move the court to vacate the plea.

To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement. [Citations.] (People v. Totari (2002) 28 Cal.4th 876, 884; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192, 199-200 (Zamudio).) On prejudice, the sentencing court must determine whether the error prejudiced the defendant, i.e., whether it is reasonably probable the defendant would not have pleaded guilty if properly advised. [Citations.] (Zamudio, supra, 23 Cal.4th at p. 210; People v. Castro-Vasquez (2007) 148 Cal.App.4th 1240, 1244 (Castro-Vasquez).) We review the trial courts denial of the motion for abuse of discretion. (Zamudio, supra, 23 Cal.4th at p. 192; People v. Chien (2008) 159 Cal.App.4th 1283, 1287.)

Respondent has conceded that the record, to the extent it exists, does not demonstrate that the sentencing court properly advised appellant about the immigration consequences of his plea. In addition, appellant has been deported twice and is currently in federal custody on an illegal re-entry charge, thus there is clearly more than a remote possibility that appellants conviction has had, and will continue to have, the adverse immigration consequences set forth in the statute.

However, in order to prevail on the motion to vacate his plea, appellant had to establish that he was prejudiced by the lack of a proper section 1016.5 advisement. When determining whether the defendant was prejudiced a court may consider the probable outcome of any trial, to the extent that may be discerned. (In re Resendiz (2001) 25 Cal.4th 230, 254 (Resendiz).) Here, the record reveals that appellant would have faced a steep uphill battle to avoid a conviction. The eyewitness from the scene of the shooting recognized appellant as one of the two individuals she saw in the car during the shooting. Although the witness thoughtbut was not surethat Lopez was the shooter, she positively identified the Camaro, police apprehended appellant in the same car less than an hour after the shooting, police found a firearm in the car that was loaded with ammunition matching the shell casings collected at the scene, and appellant tested positive for gunshot residue while Lopez did not. In addition, appellant was a known member of the Vineland Boys gang; according to his own statement, on the day of the shooting he attended the funeral of a Vineland Boy who had been killed by the rival 18th Street gang; and the police had information that the Vineland Boys intended to do a payback.[3] In light of this evidence, the trial court could conclude that appellant would likely have been convicted had he opted to go to trial.

Appellant argues that the prosecutions case had shortfalls, specifically that the victim was uncooperative, and the eyewitness was confused about who was shooting and who was driving the Camaro during the incident. These facts do not significantly weaken the prosecutions evidence. Even without the victim, the prosecution could prove its case with the eyewitness alone. (Evid. Code,  411; People v. Vega (1995) 33 Cal.App.4th 706, 711.) And even if the witness confused defendant and Lopez, this would not have hindered the prosecution from proceeding on an aiding and abetting theory that would have subjected defendant to the same liability as the principal in the shooting. ( 31.)

Appellant did not have to prove that he would have received a favorable outcome at trial to demonstrate prejudice from the lack of a section 1016.5 advisement. (Castro-Vasquez, supra, 148 Cal.App.4th at p. 1245.) But the probable outcome of the trial was a factor the trial court could validly consider in this case to determine if it was reasonably probable that defendant would not have pled guilty had he known of the immigration consequences of the plea. As noted in Resendiz, in the context of ineffective assistance of counsel and the section 1016.5 advisement: The choice . . . petitioner would have faced at the time he was considering whether to plead, even had he been properly advised, would not have been between, on the one hand, pleading guilty and being deported and, on the other, going to trial and avoiding deportation. While it is true that by insisting on trial petitioner would for a period have retained a theoretical possibility of evading the conviction that rendered him deportable and excludable, it is equally true that a conviction following trial would have subjected him to the same immigration consequences. (Resendiz, supra, 25 Cal.4th at p. 254.)

The evidence against appellant, and his lack of persuasive exculpatory arguments, strongly suggests that, in 1994, appellant was choosing between a guilty or no contest plea and a probable conviction.[4] The gulf between the plea appellant accepted and the sentence he faced if convicted significantly undermines his assertion that he would have risked going to trial had he been aware of the immigration consequences of his plea. In addition, Resendiz instructs that the defendants assertion he would not have pled guilty if given competent advice must be corroborated independently by objective evidence. [Citations.] In this case, the only evidence appellant provided to demonstrate that he would have proceeded to trial had he received the proper section 1016.5 advisement is his own declaration. Appellants self-serving statements alone are insufficient to meet the necessary showing of prejudice. (Resendiz, supra, 25 Cal.4th at 253; In re Alvernaz (1992) 2 Cal.4th 924, 938.)Further, the trial court found appellant was not credible, meaning the court did not believe appellant when he said that if he had been properly advised, he would not have pled no contest. We are bound by the trial courts reasonable factual findings. (People v. Gutierrez (2003) 106 Cal.App.4th 169, 176.)

Appellant attempts to support his prejudice arguments by arguing that his many ties to the United States are evidence that he would not have accepted a plea had he known of the adverse immigration consequences it would carry. We cannot say that the trial court abused its discretion in concluding that these ties alone do not constitute a showing that it is reasonably probable that appellant would have risked trial and a life sentence had he received the proper section 1016.5 advisement. Appellant was 19 years old when he pled no contest in 1994. The difference between an indeterminate sentence and a maximum 14-year sentence was therefore vast, even with the possibility of deportation or exclusion, and particularly in light of the substantial evidence against appellant.

Moreover, while appellant has repeatedly mentioned his three young children, all of whom are United States citizens, to illustrate why he would have risked trial rather than be permanently excluded from the United States, we note that none of these children had been born when appellant was deciding whether to accept the 1994 plea. We in no way minimize the hardship that appellant and his family may suffer as a result of his deportation and exclusion from this country. But the prejudice determination required the trial court to ascertain what it is reasonably probable appellant would have done in 1994 if properly advised under section 1016.5, not what he would do now in view of changed circumstances.

Appellant did not identify any objective evidence to corroborate his assertion that he would not have pled no contest had he received the proper section 1016.5 advisement. As a result, he did not establish that he was prejudiced by the non-advisement. The trial court did not abuse its discretion by denying appellants motion to vacate his 1994 plea. Because appellant did not demonstrate prejudice, we need not consider the alternative ground that appellant failed to exercise reasonable diligence in filing the motion.

DISPOSITION

The trial courts denial of appellants motion to vacate is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] These were the childrens ages as of the filing of appellants motion to vacate in 2006.

[3] Although evidence of gang membership may be subject to exclusion under Evidence Code section 352 because of its highly prejudicial nature, in this case gang-related evidence would likely have been relevant to motive, as well as the premeditated, willful, and deliberate allegation. (See People v. Avitia (2005) 127 Cal.App.4th 185, 192-193; People v. Killebrew (2002) 103 Cal.App.4th 644.)

[4] Appellant also argued that he could have negotiated with the prosecution to plead to a non-excludable, non-deportable offense, perhaps in exchange for a longer sentence. However, other than appellants counsels arguments, the record contains no evidence suggesting that such negotiations would have been possible, or what non-deportable offense would have been likely acceptable to the prosecutor in an attempted murder, gang case.