P. v. Litonjua
Filed 5/21/13 P. v. Litonjua CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
RAUL LITONJUA, JR.,
Defendant
and Appellant.
E056854
(Super.Ct.No.
FWV1102618)
OPINION
APPEAL
from the Superior Court
of
County. Michael A.
Sachs, Judge. Affirmed.
Zulu
Ali, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
After pleading nolo contendere to
(Health & Saf. Code, § 11378)
Jr., was placed on probation for three years.
He was subsequently taken into custody by Immigration and Customs
Enforcement. Defendant then filed a
alleging that he was denied effective assistance of counsel when his trial
counsel failed to advise him of the immigration consequences of his guilty
plea. The trial court denied the motion. Defendant filed a notice of appeal
challenging the validity of his plea and claiming that the court erred in
hearing the motion to withdraw his plea over defense counsel’s objection. Defendant also filed a request for
court granted.
On
appeal, defendant contends that he received
because his trial counsel failed to advise him of the immigration consequences
of his guilty plea.
name="_ftnref2" title="">[2] We affirm the judgment.
FACTUAL AND PROCEDURAL
BACKGROUND
name="_ftnref3" title="">[3]
On September 26, 2011, a police officer was on patrol and noticed a vehicle
with several Vehicle Code equipment violations (e.g., missing front license
plate). The officer conducted a traffic
stop. The driver identified himself as
defendant. There was a female passenger
in the back seat. The officer noted a
strong odor of marijuana coming from the car and asked about it. Defendant admitted that he had marijuana in
the car, but denied having anything else illegal. Defendant consented to a search of the
car. The officer found empty plastic
baggies, a digital scale, a ledger, 15 grams of marijuana, and seven grams of
methamphetamine. The officer also
noticed a cell phone in the car that was continuously ringing and receiving
text messages that were consistent with narcotics transactions. The phone belonged to defendant. The officer arrested defendant and
transported him to the West Valley Detention Center. The officer interviewed defendant. After waiving his Miranda
name="_ftnref4" title="">[4] rights, defendant admitted that all of the
narcotics found inside the car belonged to him.
He said the methamphetamine found in the car was for his personal use,
but he admitted that he sold marijuana and that all of the packaging materials
in the car, including the scale, were for the sale of marijuana. He denied selling methamphetamine.
On
September 28, 2011, defendant was charged by felony complaint with
for sale (§ 11378, count 1), and possession of marijuana for sale
(§ 11359, count 2).
On
October 5, 2011, defendant pled no contest to count 1. Pursuant to a plea agreement, the court
dismissed the remaining count and placed defendant on probation for three
years, including 180 days in county jail.
On
January 22, 2012, defendant was taken into custody by Immigration and Customs
Enforcement.
On
April 9, 2012, defendant filed a motion to withdraw his plea. The court held a hearing on the motion. After hearing testimony from defendant’s
trial counsel and arguments from counsel, the court denied the motion.
ANALYSIS
Defendant Has Failed to
Establish That He Received IAC
Defendant
contends that his trial counsel was ineffective for failing to advise him of
the immigration consequences of his plea or provide alternatives to a guilty
plea. We disagree.
A. Relevant
Law
In
order to establish a claim of IAC, a defendant must demonstrate that
“(1) counsel’s performance was deficient in that it fell below an
objective standard of reasonableness under prevailing
deficient representation prejudiced the defendant, i.e., there is a ‘reasonable
probability’ that, but for counsel’s failings, defendant would have obtained a
more favorable result. [Citations.] A ‘reasonable probability’ is one that is
enough to undermine confidence in the outcome.
[Citations.]†(
540-541.) Hence, an IAC claim has two
components: deficient performance and
prejudice. (People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to establish either
component, his claim fails.
Furthermore,
Penal Code 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.â€
“Upon request, the court shall allow the defendant additional time to
consider the appropriateness of the plea in light of the advisement as
described in this section.†(Pen. Code,
§ 1016.5, subd. (b).)
Trial
counsel, as well as the court, has a duty to advise. “For at least the past 15 years, professional
norms have generally imposed an obligation on counsel to provide advice on the
deportation consequences of a client’s plea.
[Citation.] We should, therefore,
presume that counsel satisfied their
obligation to render competent advice at the time their clients considered
pleading guilty. [Citation.]†(Padilla
v. Kentucky (2010) 559 U.S. 356, [130 S.Ct. 1473, 1485] (Padilla), italics added.)
B. Relevant
Proceedings
Defendant
filed a motion to withdraw his plea, alleging that his trial counsel rendered
IAC by failing to inform him of the immigration consequences of his nolo
contendere plea. He further claimed that
the court failed to inform him of the possible immigration consequences, as
required by section 1016.5.
In
its opposition to the motion, the prosecutor attached a copy of defendant’s
plea agreement, which contained the standard warning of the immigration
consequences of a guilty plea. It
states: “I understand that if I am not a
citizen of the United States, deportation, exclusion from admission to the
United States, or denial of naturalization will result from a conviction of the
offense(s) to which I plead guilty/no contest.â€
Defendant personally initialed the box next to this paragraph. Defendant also initialed the box next to the
paragraph which reads: “I have had
sufficient time to consult with my attorney concerning my intent to plead
guilty/no contest to the above charge(s) (and admit any prior conviction or
enhancement). My lawyer has explained
everything on this Declaration to me, and I have had sufficient time to
consider the meaning of each statement.
I have personally placed my initials in certain boxes on this
Declaration to signify that I fully understand and adopt as my own each of the
statements which correspond to those boxes.â€
In
addition, the plea form contained the signed statement from defendant’s trial
counsel, confirming that he personally read and explained the contents of the
plea agreement to defendant.
Furthermore, the court signed the “Order†section of the plea agreement,
which stated that the court found that defendant understood the nature of the
crime charged against him and the consequences of his guilty/no contest plea.
At
the hearing on the motion, defendant’s trial counsel testified. He said he had practiced criminal defense law
for approximately 25 years, and that it was his custom and practice, when
defendants wished to enter a plea, to assist the defendants in completing the
plea form, make sure they understood their rights, and advise them that, if
they were not a United States citizen, they could be deported or denied
naturalization. Counsel further
testified that he would ask if they understood their rights and answer any
questions they might have. He testified
that he did not deviate from this practice.
The court held defendant’s plea form, which counsel had signed, and
specifically asked if counsel invariably reviewed the immigration consequences
of a plea when he represented someone who wished to plead guilty. Counsel said, “Yes.â€
In
making its ruling, the court took note of defendant’s proffered declarations
that were filed in support of his motion, which stated that he told his counsel
he was not a United States citizen, and his counsel did not advise him that he
would be deported. The court found that
the declarations had “issues of credibility.â€
The
court next pointed out that the previous court had advised defendant that if he
was not a citizen, a conviction could lead to deportation, exclusion from
admission to the United States, or denial of naturalization. (Pen. Code, § 1016.5, subd. (b).) The court further noted that the plea form
defendant initialed explicitly advised him that “deportation, exclusion from
admission to the United States or denial of naturalization will result . . .
from a conviction.†The court emphasized
that the form did not say those consequences “may†result from a conviction,
but “will†result from a conviction.
The
court also took note of trial counsel’s testimony that, when he represented a
client who wanted to enter a plea, he invariably advised them that they would
be subject to deportation, exclusion from admission to the United States, or
denial of naturalization.
Finally,
the court took judicial notice of the documentation proffered by the
prosecution of defendant’s prior drug case, in which defendant was explicitly
advised of the immigration consequences of his guilty plea, namely that, if he
was not a citizen, a conviction would have the consequences of deportation,
exclusion from admission to the United States, or denial of
naturalization. The court concluded that
there was nothing in the prior case, or the instant case, which indicated that
defendant was not aware of the adverse consequences of entering a plea. The court stated that defendant was “a
veteran of the criminal process,†and that he had been advised repeatedly about
the consequences of a plea. The court
denied the motion to withdraw the plea.
C. Defendant
Has Failed to Establish IAC
Defendant
has failed to show either deficient conduct or prejudice. First, he claims that his counsel did not
advise him of “any sort of immigration consequence,†and that he only became
aware of the deportation consequences at the plea hearing. To the extent that defendant relies upon his
self-serving declarations that were submitted in support of his motion to
withdraw, we note that the court below found the declarations lacking in
credibility. Moreover, defendant’s claim
that his counsel failed to advise him is belied by the evidence. Defendant personally warranted, by his
initials and signature, that his trial counsel explained every item on the plea
form, including the paragraph which advised him that “deportation, exclusion
from admission to the United States, or denial of naturalization
offense†to which he pled no contest.
The plea form also contained trial counsel’s signature, warranting that
he had “personally read and explained the contents†of the form to
defendant. In addition, defendant’s
trial counsel testified at the hearing on the motion to withdraw that he had 25
years of experience as a criminal defense attorney, and that he never deviated
from his custom and practice of reviewing the immigration consequences of a
guilty plea with his clients.
Moreover,
defendant was well aware of the immigration consequences of his plea in the
current proceedings, since he had been engaged in similar plea proceedings in
previous cases. In 2009, he pled guilty
to drug possession charges, and the court advised him that if he was not a
citizen, a conviction would have the consequences of deportation, exclusion
from admission to the United States, or denial of naturalization. (Pen. Code, § 1016.5.)
Furthermore,
the cases upon which defendant relies do not support his IAC claim. He cites Padilla,
supra, 130 S.Ct. 1473. In that case, the United States Supreme Court
simply held that “counsel must inform her client whether his plea carries a
risk of deportation,†and found that the defendant’s counsel was deficient for
failing to do so. (Id. at pp. 1486-1487.)
However, counsel in that case not only failed to advise the defendant of
immigration consequences prior to entering his plea, but also told him that he
“did not have to worry†about his immigration status, since he had been in the
United Stated for so long. (
deficient. Although the consequences of
the defendant’s plea could have easily been determined from reading the
applicable statute, counsel failed to advise the defendant in accordance with
the statute. Furthermore, his counsel’s
advice was incorrect. (
Similarly,
the counsel in In re Resendiz (2001)
25 Cal.4th 230 (Resendiz)
affirmatively misadvised the defendant by telling him that if he pled guilty,
he would have “‘no problems with immigration,’ except that he would not be able
to become a United States citizen.†(
In
1470 (Soriano), the defendant’s
attorney told him only in general terms that he “could†be deported as a result
of pleading guilty to the offense. (
habeas corpus, alleging that his attorney failed to inform him adequately of
the immigration consequences of his plea, and that she had affirmatively
assured him that he would not be deported.
(Id. at p. 1478.) The defendant’s attorney admitted that “she
merely warned defendant that his plea might
have immigration consequences.†(
Unlike
Padilla, Resendiz, and Soriano,
the evidence here shows that defense counsel advised defendant that if he was
not a citizen, deportation, exclusion from admission to the United States, or
denial of naturalization would result
from a conviction. We further note that
the defendant in Soriano essentially
averred that he did not know he would be deported if he pleaded guilty. (See Soriano,
supra, 194 Cal.App.3d at p. 1478.) In contrast, the evidence here indicates that
defendant was aware of the immigration consequences if he pleaded guilty.
Defendant
also claims that he did not have enough time to consider his guilty plea and
its consequences, since he “was not warned of the consequence of deportation
before the date of his guilty plea.â€
However, defendant personally warranted, by his initials and signature,
that his trial counsel explained every item on the plea form, and that he had
had sufficient time to consult with his attorney and consider all the terms of
the plea agreement. Moreover, if
defendant needed additional time to consider his plea, in light of the
immigration advisements, he could have requested it. (Pen. Code, § 1016.5,
subd. (b).) He did not.
In
view of the evidence, we conclude that defendant has failed to establish that
his trial counsel’s performance was deficient.
Moreover, defendant has not overcome the presumption that his counsel
did advise him on the deportation consequences of his plea. (Padilla,
supra, 130 S.Ct. at p. 1485.)
In
addition, defendant cannot demonstrate that his counsel’s alleged deficient
representation prejudiced him. (
540-541.) “[A] defendant who pled guilty
demonstrates prejudice caused by counsel’s incompetent performance in advising
him to enter the plea by establishing that a reasonable probability exists
that, but for counsel’s incompetence, he would not have pled guilty and would
have insisted, instead, on proceeding to trial.
[Citations.]†(
Here,
defendant merely states that his guilty plea will “most likely lead to
deportation and removal,†and that if he had proper representation, he “
would have sought alternatives which preserve his options for post-deportation
relief.†(Italics added.) On its face, defendant’s assertion fails to
affirmatively establish prejudice.
Furthermore,
defendant was originally charged with possession of methamphetamine for sale
(Health & Saf. Code, § 11378, count 1) and possession of marijuana for
sale (Health & Saf. Code, § 11359, count 2) Had he proceeded to trial on these charges,
and had the prosecution chosen to seek maximum penalties, defendant faced a total
punishment of three years eight months of incarceration. (Health & Saf. Code, §§ 11378, 11359;
Pen. Code, §§ 1170, subd. (h)(1), 1170.1, Subd. (a).) The plea bargain reached with the prosecution
burdened him with only 180 days of local incarceration and three years of
probation. Moreover, defendant most
likely would have been convicted, in light of his admissions to the police that
all of the narcotics found inside the car belonged to him and that he sold drugs. Assuming that “a conviction following trial
would have subjected him to the same immigration consequences,†as a conviction
following a plea, defendant cannot establish that he was prejudiced by his
counsel’s alleged deficient representation.
(Resendiz,
Based
on our examination of the record, we conclude that defendant has failed to
establish that his counsel was ineffective.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references will be to
the Health and Safety Code, unless otherwise noted.
name="_ftn2" title=""> [2] We note that, despite defendant’s claim in
the notice of appeal, the opening brief does not contain any argument
concerning the court’s alleged error in hearing the motion to withdraw his plea
over defense counsel’s objection.
