P. v. Mensah
Filed 12/31/12 P.
v. Mensah CA2/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
ISIDORE B.
MENSAH,
Defendant and Appellant.
B240803
(Los Angeles County
Super. Ct. No.
PA068228)
APPEAL
from an order of the Superior Court of
County. Beverly Reid
O’Connell, Judge. Affirmed.
______
Leonard
J. Klaif, under appointment by the Court of Appeal, for Defendant
and Appellant.
No
appearance for Plaintiff and Respondent.
______
An information, dated September 13, 2010, charged Isidore B. Mensah with three counts of committing a lewd
act upon a child under the age of 14 years in violation of Penal Code
section 288, subdivision (a). According
to the preliminary hearing transcript, the charges related to oral copulation
and sexual intercourse between Mensah, when he was 37 and 38 years old, and a
13-year-old girl, whose mother was Mensah’s friend. Mensah pleaded not guilty to the charges.
On
December 28,
2011, Mensah changed his plea and entered a
plea of no contest to the first count under Penal Code section 288, subdivision
(a). As part of the no contest plea,
among other admonishments, the trial court informed Mensah that, “[i]f you are
not a citizen of the United States, your plea today will cause you to be
deported, denied reentry into the United States, denied citizenship,
naturalization and/or amnesty.†The
court asked Mensah if he understood, and Mensah replied, “Yes, your honor.†On his “Felony Advisement of Rights, Waiver,
and Plea Form,†Mensah initialed the box for the section entitled “Immigration
Consequences.†That section stated, “I
understand that if I am not a citizen of the
States, I must expect my plea of guilty or no contest will result in my
deportation, exclusion from admission or reentry to the United States, and
denial of naturalization and amnesty.â€
Mensah indicated that he was “pleading freely and voluntarily, meaning
it’s what [he] want[s] to do given [his] situation[,]†and that it was in his
best interest to enter a no contest plea to count 1. Mensah’s counsel joined in the waivers of
constitutional rights, concurred in the plea and stipulated to a factual basis
for the plea based on his review of the preliminary hearing transcript and the
police reports. The court suspended
imposition of sentence and placed Mensah on formal probation for five years
with certain terms and conditions. The court dismissed the remaining counts.
On
March 7, 2012, Mensah, represented by new counsel, filed a motion pursuant to
Penal Code section 1018 to withdraw his no contest plea. According to Mensah’s declaration filed in
support of the motion, after his no contest plea and resulting conviction, he
was informed that he was subject to mandatory deportation. Mensah indicated that, although he had
represented that he understood the plea could result in deportation, he did not
believe, based on the advice of his attorney and his immigration status, that
the plea would have such consequences.
Mensah indicated that, had he been aware the plea would result in
mandatory deportation, he would have “continued on the path to trial†or, “[a]t
the very least, . . . urged [his] counsel to keep negotiating in order to
achieve a better result[,]†such as “pleading to a similar charge that would
not result in mandatory deportation.â€
The
People opposed the motion, arguing that Mensah had not established good cause
under Penal Code section 1018 for withdrawal of his plea. The People relied on Mensah’s
acknowledgements in open court and in writing that his plea to a violation of
Penal Code section 288, subdivision (a), would result in deportation. According to the People, “the defendant was
represented by counsel and provided the court with a knowing and intelligent
written waiver of his rights. The court
should be suspect of the defendant’s subsequent claim of mistake or
ignorance. There is nothing to indicate
that the defendant was not properly advised of the consequences of his plea,
including his immigration consequences.â€
After
reading the parties’ submissions and hearing argument from counsel, the trial
court denied the motion. The court
stated, “I have read and considered the declaration of Mr. Mensah. I was present during the change of plea. . .
. And I beg to differ with Mr. Mensah’s declaration both based on my
memory and my practice. I took the plea
and I . . . specifically said:
“‘If
you are not a citizen of the United States, your plea will cause you to be
deported, denied reentry into the United States, denied citizenship,
naturalization and/or amnesty.’
“‘Do
you understand?’
“‘Yes,
your honor.’
“I
take issue with the fact that Mr. Mensah’s declaration says that he looked to
his attorney and his attorney ‘told [him] to say yes by nodding.’ The practice, if I am going to find that a
plea is knowingly, intelligently and voluntarily made, my practice is to ask,
if there is any hesitation, whether or not counsel needs additional time to
confer with their client. That did not
happen. I observed the defendant’s
demeanor during the change of plea. At
no time did he express any hesitation or misunderstanding. At no time did he visually or orally indicate
that he did not understand the constitutional rights I was going over. I beg to differ with counsel that they are
boilerplate. I take my job very
seriously. If someone does not understand
the immigration consequences, we’ll take the time so that each and every
constitutional right is understood. I
also disagree with you as to your reading of Padilla v. Kentucky [(2010) 130 S.Ct. 1473]. Padilla
v. Kentucky was factually distinct from this case. In Padilla,
the defendant was not advised that his plea to the crime carried the risk of
deportation. Mr. Mensah[,] specifically
by the court, both in writing and orally, was informed that he would. I did not even use the word ‘might.’ Under [Penal Code section] 1016.5, the
statute requires that a defendant be advised that his . . . plea may cause deportation. That did not occur. I specifically said ‘will.’ And looking at it from a Strickland [v. Washington (1984) 466 U.S. 668] standpoint, it’s a two-pronged analysis. Even if he was mis-advised by a state lawyer
not trained in federal immigration law, you have to show prejudice under the
how you characterize [the plea] and how Mr. Mensah now self-servingly
characterizes the change of plea in this case.
He faced, as a result of the charges, substantial time. . . . His
maximum exposure was 12 years, and he received a sentence of time served,
[and] . . . five years formal probation. And I had a conversation with
him, . . . his initials were a little bit different than his
name, so I specifically asked him if he initialed every box. . . . [W]e had a
conversation about [his initials] to make sure that everyone understood what
was going on. So I am rejecting, finding
not credible the declaration of Mr. Mensah based on my recollection of his
demeanor during the proceedings, and I am finding that you have failed to meet
your burden of good cause showing justification of withdrawal of his plea.â€
Mensah
filed a notice of appeal, along with a request for a
that, “[t]he trial court improperly denied the defendant’s Penal Code section
1018 motion to withdraw his plea.
Defendant’s motion was based on the misadvice of his trial counsel in
regards to the actual immigration consequences defendant faced by plea[d]ing to
an ‘aggravated felony.’ At the time of
his plea, the defendant was not aware that he faced mandatory deportation based
on the misadvice of his counsel who only advised him that he may have a problem
renewing his green card. This ignorance
resulted in a plea that was not knowing nor voluntary. Had defendant known that plea[d]ing to an
aggravated felony would result in his mandatory deportation, he would have
rejected the offer and proceeded to trial.
[¶] The trial court ruled that
the defendant knew he had a ‘risk’ of deportation and that the [Penal Code
section] 1016.5 waivers given by the court cured any erroneous advice that the
defendant may or may not have received from counsel, making his plea knowing
and voluntary. The court improperly
denied defendant’s motion.†The trial
court granted Mensah’s request for a certificate of probable cause.
We
appointed counsel to represent Mensah
in the matter. After examining the
record, counsel filed a Wende brief
raising no issues on appeal and requesting that we independently review the
record. (People v. Wende (1979) 25 Cal.3d 436.)
On
September 5,
2012, and again on October 23, 2012, we directed appointed counsel to immediately send the record on
this appeal and a copy of the opening brief to Mensah and notified Mensah that
he had
30 days to submit by letter or brief any ground of appeal, contention or
argument he wished us to consider.
On December 10, 2012,
Mensah filed a letter with the court, which we interpret as a response to our
notice informing him that he could raise any ground, contention or argument he
wished us to consider on appeal. In his letter, Mensah repeated the argument asserted
in his Penal Code section 1018 motion that, although he acknowledged
orally and in writing that his plea would result in deportation, he did not
understand based on the advice of his attorney that pleading no contest to a
violation of Penal Code section 288, subdivision (a), subjected him
to mandatory deportation. After
Mensah’s letter, and examining the appellate record, we conclude that
the trial court did not abuse its
discretion in denying Mensah’s motion to withdraw his plea. (People v.
Mickens (1995) 38 Cal.App.4th 1557, 1561 [“decision whether to allow a
defendant to withdraw a guilty or no contest plea is discretionary, and an
appellate court will not disturb it absent a showing the trial court has
abused its discretionâ€].) The appellate record does not provide a basis for
determining on direct appeal that Mensah received
ineffective assistance of counsel based on the alleged advice he received from
his attorney before entering his no contest plea. (People
v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [claim of
ineffective assistance of counsel generally more appropriately addressed in
habeas corpus proceeding]; see Padilla
v. Kentucky,
[determining in postconviction proceeding that defendant entitled to effective
assistance of counsel on effect of plea on immigration status].) We are satisfied that
Mensah’s appointed counsel on appeal has fully complied with his
responsibilities and that no
supra, 25 Cal.3d at p. 441;
106, 110.)
DISPOSITION
The
order is affirmed.
NOT
TO BE PUBLISHED.
ROTHSCHILD,
Acting P. J.
We concur:
CHANEY, J.
JOHNSON, J.
