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People v. Hamawi

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Oct 30, 2018
D073479 (Cal. Ct. App. Oct. 30, 2018)

Opinion

D073479

10-30-2018

THE PEOPLE, Plaintiff and Respondent, v. MUHAMMED HAMAWI, Defendant and Appellant.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CR120122) APPEAL from a postjudgment order of the Superior Court of San Diego County, Frederic L. Link, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Muhammed Hamawi appeals from a postjudgment order denying his motion under Penal Code section 1473.7 to vacate his conviction for possession of more than 28.5 grams of methamphetamine for sale (Health & Saf. Code, § 11378; Pen. Code § 1203.073, subd. (b)(2)). Hamawi's conviction was the result 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 neither the court nor his trial counsel properly advised him of the immigration consequences of the plea.

We conclude Hamawi has not established either the court or his trial counsel erred in their advisements. We, therefore, affirm the order.

II

BACKGROUND

A

1

According to the probation report, a confidential informant for the narcotics task force negotiated with Hamawi to buy pound-size quantities of methamphetamine. Hamawi told the informant he could deliver the methamphetamine. He asked the informant to front him $19,000 in cash and he would leave and return with two pounds of the drug. He told the informant if the sale went smoothly, an additional three pounds of the drug could be delivered for $9,500 a pound. The informant asked Hamawi to provide a sample of the drug and told Hamawi if it was of good quality, the informant would purchase an additional two pounds.

The informant and Hamawi went to a home. The informant waited outside while Hamawi went inside. After about five minutes, Hamawi provided the informant a tinfoil bindle containing a sample of about 24.4 grams of methamphetamine. The informant then drove Hamawi to a predesignated location where they met with task force agents and gave the agents the sample.

An undercover officer obtained a telephonic search warrant and then accompanied the informant and Hamawi back to the home to purchase the two pounds of methamphetamine. The informant entered the home with Hamawi and a codefendant. After about 15 minutes, the informant, Hamawi, and the codefendant left the home and walked to a parking lot where Hamawi and the codefendant were arrested.

Meanwhile, a man fled the home and was apprehended after a foot chase. During the foot chase, the man discarded a pound of methamphetamine.

Inside the home, officers found a triple-beam scale on the kitchen counter, a plastic scale in the kitchen, a baggie containing approximately 402.2 grams of a cutting agent in the living room, a baggie containing approximately 7.48 grams of methamphetamine in the bedroom, numerous plastic baggies containing marijuana, and $2,490 in cash in the living room.

Hamawi admitted to a probation officer he negotiated with the informant for the sale of methamphetamine. However, he claimed the sale was for one pound, not two pounds. He further claimed he acted as the middleman because the informant promised him some of the drugs for his personal use. He said he had an addiction and only wanted the drugs the informant promised to give him, which was about two to three grams.

2

Hamawi pleaded guilty to possession of more than 28.5 grams of methamphetamine for sale in exchange for the prosecution's agreement not to ask for a sentence of more than two years and to dismiss a second charge of selling, furnishing, administering, or giving away more than 28.5 grams of methamphetamine. (Health & Saf. Code, § 11379; Pen. Code, § 1203.073, subd. (b)(2).) The maximum penalty for the guilty plea was three years in prison, a $20,000 fine, and 60 months of parole. The dismissed charge carried a maximum prison term of four years in prison.

Hamawi pleaded guilty at the same time as two codefendants. Hamawi was on probation for voluntary manslaughter at the time of the offense.

Before entering the guilty plea, Hamawi signed and initialed a guilty plea form containing numerous advisements. One of the advisements stated, "I understand that if I am not a citizen of the United States a plea of Guilty or No Contest could result in deportation, exclusion from admission to this country, and/or denial of naturalization." At the end of the form, just above Hamawi's signature, Hamawi initialed a statement declaring "under penalty of perjury, under the laws of the State of California, that I have read, understood, and initialed each item above [including the immigration consequences advisement], and everything on the form is true and correct."

His defense counsel also signed the guilty plea form beneath the "ATTORNEY'S STATEMENT," which read: "The undersigned states that (s)he is the attorney for defendant in the above-entitled action; that (s)he personally read and explained the contents of the above declaration to the defendant and each item thereof; that no meritorious defense exists to the charge(s) to which defendant is pleading Guilty/No Contest; that (s)he personally observed the defendant fill in and initial each item, or read and initial each item to acknowledge explanation of the contents of each item; that (s)he observed defendant date and sign said declaration; that (s)he concurs in defendant's above plea and in defendant's waiver of constitutional rights."

During the plea colloquy, the court asked Hamawi whether he had read the guilty plea form before he signed it. He responded, "Yes." The court also asked him whether he had reviewed the form with his attorney before he signed it and whether he had understood all the information on the form. He again responded, "Yes."

The court signed the guilty plea form beneath the "COURT'S FINDINGS AND ORDER," which stated: "The Court, having questioned the defendant concerning the defendant's constitutional rights, finds that defendant has voluntarily and intelligently waived his/her constitutional rights. The Court finds that defendant's pleas and admissions are freely and voluntarily made, that defendant understands the nature of the charges and the consequences of the plea, and that there is a factual basis for the plea. The Court accepts defendant's plea, and the defendant is hereby convicted on his plea." Consistent with the plea agreement, the court sentenced Hamawi to two years in prison.

B

Twenty years later, Hamawi, who has been ordered deported, filed motions to vacate the judgments for his conviction in this case and his 1989 conviction for his guilty plea to voluntary manslaughter (see fn. 1, ante). He argued the court should vacate the judgments because the court did not adequately inform him of the potential immigration consequences of the guilty pleas in violation of Penal Code section 1016.5 and People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183 (Zamudio). He also argued his trial counsel did not advise him of the immigration consequences and he would not have pleaded guilty had he known the immigration consequences. Instead, he either would have attempted to obtain a plea bargain without immigration consequences or he would have gone to trial.

The court denied the motion, finding Hamawi was given the required advisement on the guilty plea form and had signed the form under penalty of perjury indicating he had read and understood the advisement. We affirmed the order on appeal. (People v. Hamawi (Aug. 22, 2012, D060996) [nonpub. opn.].)

The same year, Hamawi also filed a motion to vacate the judgment for his 1994 conviction based on his guilty plea to being a felon in a possession of a firearm. The court denied the motion. We dismissed the appeal on procedural grounds, but also concluded the court did not err in denying the motion. (People v. Hamawi (Mar. 12, 2013, D062045) [nonpub. opn.].)

C

In 2017, Hamawi filed a motion under recently enacted Penal Code section 1473.7 once again seeking to vacate his conviction in this case. He asserted his conviction was legally invalid because he was unable to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of his guilty plea.

In support of the motion, Hamawi submitted a declaration stating his trial counsel did not advise him of the immigration consequences of the plea bargain or to consult with an immigration attorney about the consequences. In addition, he stated his trial counsel never presented him with any immigration safe plea bargain options or discussed the possibility of presenting such options to the prosecution during plea negotiations. He further stated he would not have pleaded guilty to any crime and would have rejected any plea bargain that could have potentially caused him to be deported.

Hamawi also submitted a declaration from his immigration attorney. The immigration attorney stated no qualified criminal defense attorney would counsel a client to plead guilty to a felony with immigration consequences, especially if there were problems of proof or legal defenses available. Instead, a competent criminal defense attorney would have exploited the weaknesses in the case to reduce the charges to offenses with better immigration outcomes. The immigration attorney additionally stated, he was convinced, based on his understanding of Hamawi's state of mind at the time of the guilty plea, Hamawi did not understand the consequences of the charges or the ramifications of entering a guilty plea.

The court conducted a hearing at which it considered the parties' papers and arguments. The court subsequently denied the motion, finding Hamawi had not met his burden of proof.

III

DISCUSSION

A

Preliminarily, the parties dispute the standard of review applicable to Hamawi's appeal. Hamawi contends our review is de novo. The People contend our review is for abuse of discretion. There is a split of authority among the courts of appeal on this issue. (See People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76, 79 [concluding the de novo standard applies]; People v. Gonzalez (2018) 27 Cal.App.5th 738, 747-748 (Gonzalez) [concluding the abuse of discretion standard applies].) We need not resolve the dispute in this case because we conclude, even under the de novo standard of review, Hamawi has not established entitlement to relief under Penal Code section 1473.7.

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)(1)-(2).) 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 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.)

Hamawi bases his entitlement to relief under Penal Code section 1473.7 on two asserted errors. First, the court failed to give him the advisement required by Penal Code section 1016.5. Second, his trial counsel provided ineffective assistance by failing to properly advise him of the immigration consequences of his plea and to seek an immigration safe plea bargain.

1

Regarding the first asserted error, Penal Code section 1016.5, subdivision (a), provides that "[p]rior to acceptance of a plea of guilty or nolo contendere [no contest] 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."

In this case, the required advisement was included in the change of plea form, which Hamawi acknowledged reading, understanding, initialing, and signing. The court was not required to provide the advisement verbally. " '[A] validly executed waiver form is a proper substitute for verbal admonishment by the trial court. [Citation.]' [Citations.] The advisement need not be in the exact language of section 1016.5 and can be in writing. Substantial compliance is all that is required." (People v. Araujo (2016) 243 Cal.App.4th 759, 762.)

2

Regarding the second asserted error, a defendant who seeks to vacate a conviction on the ground of ineffective assistance of counsel must establish counsel's performance was deficient in that it fell below an objective standard of reasonableness. The defendant must also establish he or she was prejudiced by counsel's deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [104 S.Ct. 2052, 80 L.Ed.2d 674]; People v. Patterson (2017) 2 Cal.5th 885, 901 (Patterson).)

a

Currently, 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 [130 S.Ct. 1473, 176 L.Ed.2d 284] (Padilla); see Pen. Code, § 1016.3, subd. (a).) However, the obligation established in Padilla does not apply retroactively to cases which were final when Padilla was decided. (Chaidez v. United States (2013) 568 U.S. 342, 344, 358 [133 S.Ct. 1103, 185 L.Ed.2d 149].)

Instead, at the time Hamawi pleaded guilty in this case, "the immigration ramifications of guilty or no contest pleas were generally considered indirect or ' "collateral" ' consequences of those pleas, about which a defendant need not be advised. [Citations.] Therefore, failure to advise a defendant about those ramifications could not support a claim of ineffective assistance of counsel under the first prong of the Strickland analysis because such a failure did not fall below a general standard of reasonableness." (Gonzalez, supra, 27 Cal.App.5th at p. 750.)

b

Even if Hamawi had established his counsel's performance was deficient, he also 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, 137 S.Ct. at pp. 1966-1967; see Martinez, supra, 57 Cal.4th 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, 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, Hamawi 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. He also did not present any evidence or argument on the potential consequences after a trial compared to the consequences flowing from the guilty plea, except to assert his guilty plea only shaved one year off of his potential prison term. However, at the time of his guilty plea Hamawi was charged with a second offense, which was also a deportable offense and was subject to a maximum term of four years in prison. He was also on probation for another deportable offense. Thus, had he gone to trial and been convicted, he would have been exposed to a longer prison sentence and would still have been subject to removal proceedings.

Additionally, while Hamawi claims the potential increased prison time was not enough to risk the immigration consequences of pleading guilty, the record suggests he had a powerful incentive to reduce the amount of time he spent in prison. Specifically, he told the probation officer he was being targeted by gang members who wanted retribution against him for killing one of their own and he had to be housed in solitary confinement because he had been beaten by gang members in jail. By pleading guilty and ensuring he would receive a prison term of no more than two years, Hamawi reduced the amount of time he would be at risk for gang retribution in prison.

We further note Hamawi pleaded guilty at the exact same time as his two codefendants (see fn. 1, ante). This raises an inference the three plea agreements were negotiated as a package deal.

Lastly, we do not doubt the immigration consequences of Hamawi's guilty plea were important to him. 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, 137 S.Ct. at p. 1968.) Nevertheless, the record shows Hamawi was willing to enter a guilty plea with immigration consequences because he signed a form acknowledging his guilty plea may have immigration consequences, which he stated in open court and in writing he had read and understood. He also previously pleaded guilty to voluntary manslaughter despite acknowledging the offense had immigration consequences. Accordingly, he has not established his trial counsel's allegedly deficient performance prejudiced him or, concomitantly, that the trial court erred in denying his motion to vacate the conviction.

Effective January 1, 2019, Penal Code section 1473.7, subdivision (a)(1), has been amended to specify, "[a] finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel." (Stats. 2018, ch. 825, § 2.) Instead, the only finding a court is required to make under this subdivision "is whether the conviction is legally invalid due to 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." (Legis. Counsel's Dig., Assem. Bill No. 2867 (2017-2018 Reg. Sess.) Stats. 2018, Summary Dig.) This amendment does not affect this appeal because, for the reasons discussed, Hamawi has not established an error, prejudicial or otherwise, occurred in connection with his guilty plea. Given this and our preceding substantive conclusions, we need not decide whether Hamawi was collaterally estopped from challenging his conviction under Penal Code section 1473.7. --------

IV

DISPOSITION

The order is affirmed.

McCONNELL, P. J. WE CONCUR: O'ROURKE, J. DATO, J.


Summaries of

People v. Hamawi

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Oct 30, 2018
D073479 (Cal. Ct. App. Oct. 30, 2018)
Case details for

People v. Hamawi

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MUHAMMED HAMAWI, Defendant and…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Oct 30, 2018

Citations

D073479 (Cal. Ct. App. Oct. 30, 2018)