Alex D. Kreit, 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, Collette C. Cavalier and Joseph Anagnos, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD253935) APPEAL from an order of the Superior Court of San Diego County, Kenneth K. So, Judge. Reversed with directions. Alex D. Kreit, 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, Collette C. Cavalier and Joseph Anagnos, Deputy Attorney General, for Plaintiff and Respondent.
Macjhay Yagao appeals an order denying his motion under recently enacted Penal Code section 1473.7 to vacate his aggravated felony conviction for transportation of more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a)). Yagao contends the trial court's denial of his motion was error because his trial counsel failed to advise him of the immigration consequences of his guilty plea and he was prejudiced by the deficiency. We agree and, therefore, reverse the order.
Undesignated statutory references are to the Health and Safety Code.
FACTUAL AND PROCEDURAL BACKGROUND
GUILTY PLEA AND HABEAS PETITIONS
On February 1, 2014, San Diego police officers pulled Yagao over for speeding. After performing a records check, officers determined that Yagao was driving on a suspended license. A search of Yagao's car uncovered 198 grams of marijuana. Yagao was charged with transportation of more than 28.5 grams of marijuana (§ 11360, subd. (a), count 1), possession of marijuana for sale (§ 11359, count 2), and driving with a suspended or revoked license (Veh. Code, § 14601, subd. (a), count 3).
Yagao told defense attorney, Jill Kovaly, during their first conversation on February 20, 2014, that he wanted to avoid deportation. Kovaly recommended he consult an immigration attorney and stressed the importance of staying out of custody. On March 25, 2014, at the settlement conference, Kovaly discussed the possibility of a plea agreement that had been offered by the District Attorney. Kovaly told Yagao that if he pleaded guilty to count one, she "would attempt to get alternatives to custody including work furlough, RRC, or ideally residential rehabilitation." Kovaly advised Yagao that residential rehabilitation was a "safer" option but that it was not a guarantee that ICE would not contact him.
Yagao agreed to plead guilty to count 1 in exchange for the prosecution's dismissal of the other two counts. Before entering the guilty plea, Yagao signed and initialed a guilty plea form, which included advisement 7d stating, "I understand that if I am not a U.S. citizen, this plea of Guilty/No Contest may result in my removal/deportation, exclusion from admission to the U.S. and denial of naturalization." Kovaly circled 7d, as well as the word "may," when reviewing it with Yagao.
The back of the guilty plea form noted that "any conviction of a non-citizen for an 'aggravated felony' . . . will result in removal/deportation, exclusion, and denial of naturalization." The form identified a nonexclusive list of aggravated felonies, including "transportation of any controlled substance." Kovaly signed the form beneath the statement, "I, the attorney for the defendant in the above-entitled case, personally read and explained to the defendant the entire contents of this plea form and any addendum thereto. I discussed all charges and possible defenses with the defendant, and the consequences of this plea, including any immigration consequences."
At the beginning of the plea colloquy, the court reviewed the guilty plea form with Yagao:
"THE COURT: I'm showing you your blue felony change of plea forms. Are these your initials in the boxes and signature and thumbprint on the form?
"[YAGAO]: Yes, your honor.
THE COURT: Did you go over the form with your attorney, Ms. Kovaly?
Following Yagao's guilty plea, the court continued:
"THE COURT: This is a NOLT offer, alternatives to custody if available, and the court will place you on probation. Do you understand that?
"[YAGAO]: Yes, your honor.
"THE COURT: In addition, do you understand that, if you are not a citizen of the United States, your plea of guilty will result in deportation, exclusion from admission to the United States, and denial of naturalization?
"[YAGAO]: Yes, your honor."
"NOLT" is an acronym for "No Opposition to Local Time," which means it will allow the defense to offer sentencing alternatives to incarceration without any opposition.
The day after Yagao pleaded guilty, he called Kovaly and stated he wanted to withdraw the plea and fight the charges. Kovaly replied that she did not think there were any grounds for withdrawing the plea, and she advised Yagao "he was free to request a Marsden hearing or consult another attorney to review the case." Kovaly's case notes indicated Yagao again requested to withdraw his plea two days later. Kovaly did not perform any work on Yagao's case, however, until she appeared at Yagao's sentencing hearing on May 5, 2014. At that time Kovaly told the court that Yagao wanted to withdraw his plea and that it may require a Marsden hearing. The court granted Yagao a continuance until June 2, 2014.
People v. Marsden (1970) 2 Cal.3d 118.
No Marsden hearing took place, and on June 2, 2014, the court sentenced Yagao to three years of formal probation with 180 days of work furlough custody. Kovaly's case notes from June 4, 2014 indicated that she advised him to admit count 1 "since possible better dispo for immigration consequences." She also noted that Yagao would "likely [encounter] INS issues [because he] has prior as well. DA not willing to do anything better since he has priors."
On June 27, 2014, while Yagao was serving his work furlough sentence, an Immigration and Customs Enforcement (ICE) Deportation Officer issued an immigration detainer for him. The detainer was based on Yagao's aggravated felony offense for transportation of more than 28.5 grams of marijuana. Yagao has been detained in ICE's custody since October 3, 2014, and on July 31, 2015, an immigration judge ordered Yagao "be removed from the United States to the Philippines."
Thereafter, Yagao filed four separate petitions for writs of habeas corpus in the San Diego County Superior Court, this court, the California Supreme Court, and the United States District Court for the Southern District of California. In each petition, Yagao argued that (1) Kovaly provided ineffective assistance by failing to advise him of the immigration consequences of the plea; (2) his plea was not knowing and intelligent; and (3) his plea was not entered freely or voluntarily. Each petition was denied.
MOTION TO VACATE
On May 10, 2017, Yagao filed a motion under Penal Code section 1473.7 to vacate his conviction because Kovaly provided ineffective assistance of counsel. Yagao asserted Kovaly failed to provide him with informed and accurate immigration advice about his plea, failed to competently defend against the potential negative immigration consequences of a guilty plea during plea negotiations, and that these failures prejudiced him.
In support of the motion, Yagao submitted his declaration and Kovaly's declaration from the earlier habeas petitions. He also submitted the declaration of immigration law specialist Rose Cahn of the Immigrant Legal Resource Center (ILRC), which was under contract with the public defenders' office at the time Yagao entered the plea agreement; relevant pages of the 2013 ILRC Quick Reference Chart; Kovaly's notes from her agency's online case reporting and time tracking system, and several character letters.
At the hearing on the motion, Attorney Vickie Fernandes appeared on Yagao's behalf. Fernandes argued Yagao was not advised of the explicit immigration consequences of his plea and did not understand that pleading guilty to a violation of section 11360, subdivision (a) with a work furlough sentence would not lessen his chances of deportation.
Fernandes also argued Yagao did not understand the acknowledgment item 7d on the change of plea form or the standard admonishment given by the trial court. Fernandes further explained that Kovaly never told Yagao that section 11360, subdivision (a) triggered automatic, mandatory removal. Fernandes noted that had Kovaly "contacted the ILRC . . . she would have quickly found out that [Yagao] was going to absolutely one hundred percent be deported, with this as an aggravated felony" regardless of the sentence.
At the conclusion of the hearing, the court denied the motion, finding Yagao had not "proven by a preponderance of the evidence that a prejudicial error has occurred which damaged his ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of his plea of guilty." The court stated, Yagao "initialed, signed, and put his thumbprint on his change of plea form which included 7d which indicated that his plea would result in deportation." The court found that the form adequately explained the adverse consequences of the plea and Yagao indicated to the court that he understood what he signed and that if he was not a citizen of the United States his plea of guilty would result in removal or deportation.
Yagao bases his entitlement to relief under Penal Code section 1473.7 on his assertion that his conviction was legally invalid because Kovaly provided ineffective assistance of counsel. He argues that Kovaly failed to adequately advise him of the immigration consequence of pleading guilty to a violation of section 11360, subdivision (a).
STANDARD OF REVIEW
A defendant's claim that he or she was deprived of the constitutional right to effective assistance of counsel "presents a mixed question of fact and law," which this court reviews independently. (In re Resendiz (2001) 25 Cal.4th 230, 248 (Resendiz); People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76 (Ogunmowo).) We defer to the trial court's factual determinations if supported by substantial evidence in the record, but exercise our independent judgment in deciding whether the facts demonstrate trial counsel's deficient performance and any resulting prejudice to the defendant. (Resendiz, supra, at p. 249.)
MOTION TO VACATE LEGAL PRINCIPLES
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." (Pen. Code, § 1473.7, subd. (a).) The motion must be made with reasonable diligence after the party receives notice of pending immigration proceedings or a removal order. (Pen. Code, § 1473.7, subd. (b).) The court must hold a hearing on the motion, and if the moving party establishes by a preponderance of the evidence that he or she is entitled to relief, the court must allow the person to withdraw his or her plea. (Pen. Code, § 1473.7, subds. (d), (e); People v. Perez (2018) 19 Cal.App.5th 818, 824 (Perez).)
A defendant who seeks to vacate a conviction on the ground of ineffective assistance of counsel must satisfy two prongs established by the United States Supreme Court in Strickland v. Washington (1984) 466 U.S. 668, 687-688: (1) that counsel's performance was deficient in that it fell below an objective standard of reasonableness and (2) that he or she was prejudiced by that deficient performance. (See Ogunmowo, supra, 23 Cal.App.5th at p. 75 ["Ineffective assistance of counsel that damages a defendant's ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a guilty plea . . . is the type of error that entitles the defendant to relief under section 1473.7."].) A "defendant can pursue a claim for relief for ineffective assistance of counsel, based on counsel's misadvice regarding immigration consequences, notwithstanding that the trial court had properly advised the defendant under section 1016.5." (People v. Aguilar (2014) 227 Cal.App.4th 60, 72, citing Resendiz, supra, 25 Cal.4th at pp. 240-242.)
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 (Padilla); see Pen. Code, § 1016.3, subd. (a).) Yagao asserts Kovaly breached this obligation by leading him to believe that his guilty plea, with a work furlough sentence, was a safer option for avoiding deportation. Kovaly knew that Yagao's primary focus was avoiding deportation.
Kovaly's advice, however, was incorrect. Regardless of sentencing, the admission to the transportation of more than 28.5 grams of marijuana allegation subjected Yagao to definite removal because it is an aggravated felony. (8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(B)(i).) Had Kovaly read the removal statute or consulted the ILRC, she would have learned this and been able to provide Yagao with clear information on the outcome of his plea. By failing to do so, Kovaly did not meet her obligation to provide Yagao competent advice regarding the potential immigration consequences of his guilty plea. (See Padilla, supra, 559 U.S. at pp. 368-369 [explaining that counsel can readily determine the absolute deportation consequence resulting from an aggravated felony conviction and counsel's failure to accordingly advise a client satisfies the first prong of Strickland v. Washington, supra, 466 U.S. at pp. 687-688].)
Once ineffective assistance of counsel is shown, the defendant must next establish that, if properly advised, he or she would not have entered into the plea bargain. (People v. Martinez (2013) 57 Cal.4th 555, 559, 567 (Martinez).) Courts determine such 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] (Lee).) In making this determination in the context of a guilty plea involving immigration consequences, the reviewing court considers 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. (Id. at pp. 1966-1967 [emphasizing that these are factors and that where the "defendant was deprived of a proceeding altogether . . . the possibility of even a highly improbable result may be pertinent to the extent it would have affected his decisionmaking."].) Further, a defendant may establish prejudice based solely on the defendant's strong concern of avoiding deportation. (Id. at pp. 1968- 1969; Ogunmowo, supra, 23 Cal.App.5th at pp. 70, 79.) The United States Supreme Court recently explained in Lee that it could be reasonably probable a defendant "would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a 'Hail Mary' at trial," where "avoiding deportation was the determinative factor for [the defendant]." (Lee, supra, 137 S.Ct. at p. 1967.)
However, "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."].) But a reviewing court need not defer to a trial court's credibility conclusions when it relies on written declarations because both courts are in the same position in interpreting them. (See Ogunmowo, supra, 23 Cal.App.5th at p. 79.)
Yagao established that, if properly advised, he would not have pleaded guilty. Yagao's declaration and contemporaneous evidence shows the importance Yagao placed on avoiding deportation. In his declaration, Yagao stated that he relied on Kovaly's incorrect advice that accepting a guilty plea and serving his time in work furlough was a safer option for avoiding deportation. He further stated that had he known that section "11360(a) triggered mandatory removal and a complete bar to ever returning to the United States . . . [he] would have chosen to take [his] case to trial." Further, Yagao immigrated to the United States at age six under the direction of his mother and has resided here for more than 20 years. He knows no one in the Philippines and does not speak the language. "[D]eportation was the determinative factor for him; deportation after some time in prison was not meaningfully different from deportation after somewhat less time." (Lee, supra, 137 S.Ct. at p. 1967.) Yagao's priority was remaining in the United States.
Character letters also serve as contemporaneous evidence of Yagao's priority in avoiding deportation. Letters submitted by family and friends showed that Yagao has a good relationship with his 11-year-old daughter, a citizen of the United States.
Kovaly's declaration and notes demonstrate Yagao sought her advice about the immigration consequences of a guilty plea. Yagao explained his immigration status to Kovaly and expressed concern regarding the effect of a conviction on his immigration status. This contemporaneous evidence supports Yagao's assertion he would have rejected the plea deal if Kovaly had not misadvised him about the immigration consequences of his conviction. (See Ogunmowo, supra, 23 Cal.App.5th at p. 79 [noting that counsel's "account of discussions that occurred at the time of the guilty plea" serves as contemporaneous evidence establishing prejudice].)
In concluding Yagao was not prejudiced by Kovaly's incorrect advice, the trial court emphasized that the judge who accepted the plea warned Yagao about his immigration consequences. However, Kovaly expressly advised Yagao that immigration consequences arising from the guilty plea may arise from the guilty plea. Additionally, the court advised Yagao that immigration consequences would arise from his guilty plea only after he pleaded guilty. Furthermore, such facts do not preclude Yagao from establishing that counsel's incorrect advice prejudiced him. (People v. Aguilar, supra, 227 Cal.App.4th at p. 72, citing Resendiz, supra, 25 Cal.4th at pp. 240-242.)
Yagao reasonably relied on Kovaly's advice, which was tailored to the specific facts of Yagao's immigration status, over the trial court's generic deportation warning. (See Ogunmowo, supra, 23 Cal.App.5th at p. 80.) Moreover, the court's warning, in this case given just after the plea was taken, does not afford the same time for " 'mature reflection' " as a private discussion with a defendant's own counsel that incorporates the particular circumstances of the defendant's case. (See People v. Soriano (1987) 194 Cal.App.3d 1470, 1481 [granting petition for writ of habeas corpus and vacating judgment based on finding that the defendant was deprived of effective assistance of counsel in entering his guilty plea despite Penal Code 1016.5 warning].)
The trial court's conclusion that Yagao "understood what he signed in his discussion with Judge O'Neill," regarding immigration consequences of his guilty plea is not entitled to our deference under the applicable independent standard of review. (Resendiz, supra, 25 Cal.4th at p. 249.) To the extent that the trial court's conclusion was drawn from statements in Yagao's and Kovaly's declarations, the trial court and this court are in the same position in interpreting written declarations. (Ibid.)
In sum, Yagao's and Kovaly's declarations, along with Yagao's letters from friends and family, demonstrate a reasonable probability Yagao would not have pleaded guilty if Kovaly had not misadvised him. Accordingly, Yagao established prejudice.
The trial court erred in denying Yagao's Penal Code section 1473.7 motion to vacate his conviction. Yagao met his burden of establishing by a preponderance of the evidence (1) that Kovaly's performance was deficient in misadvising him about the immigration consequences of his guilty plea and (2) that Kovaly's incorrect advice prejudiced him in that there is a reasonable probability he would not have pleaded guilty if properly advised.
The order is reversed and the matter is remanded to the trial court to allow Yagao to withdraw his guilty plea.
HUFFMAN, Acting P. J. I CONCUR: AARON, J.
I respectfully dissent.
Four prior courts have considered and rejected Macjhay Yagao's self-serving claims that his defense counsel failed to advise him of the immigration consequences of his plea such that he would not have entered into it had he been correctly counseled. Each court relied on Yagao's change of plea form, as well as the trial court's inquiry and admonishment that his plea would result in his removal, which ensured Yagao had been given adequate advice regarding his plea.
The majority concludes Yagao demonstrated his defense counsel rendered prejudicially ineffective assistance by failing to advise him of the immigration consequences of his 2014 guilty plea to transporting more than 28.5 grams of marijuana in violation of Health and Safety Code section 11360, subdivision (a) (undesignated statutory references are to this code), on the premise that counsel did not tell him the offense qualifies as an aggravated felony rendering Yagao subject to mandatory removal. In my view, this conclusion cannot stand in the face of a record that shows counsel specifically discussed with Yagao his immigration status and covered the potential adverse immigration consequences of his plea as evidenced by the plea form, advised him to consult with immigration counsel before his guilty plea, and never advised him he would not face deportation. In the face of the district attorney's threat to amend Yagao's complaint to allege a more serious charge absent a plea, defense counsel here recommended Yagao enter into a plea to an offense that is not categorically an aggravated felony. (See U.S. v. Rivera-Sanchez (9th Cir. 2001) 247 F.3d 905, 909, superseded by statute on other grounds as stated in U.S. v. Crawford (9th Cir. 2008) 520 F.3d 1072, 1078; U.S. v. Almazan-Becerra (2008) 537 F.3d 1094, 1096 [transporting marijuana for personal use is not a drug trafficking offense; citing Rivera-Sanchez's holding that a transportation conviction under section 11360 is not categorically an aggravated felony]; see Rendon v. Mukasey (2008) 520 F.3d 967, 974-975 [explaining how to determine whether a state drug crime constitutes an aggravated felony, including categorical and modified categorical approaches]; United States v. Valdivia-Flores (2017) 876 F.3d 1201, 1206 [same].)
Upon Yagao's petition, on December 23, 2016, the court reduced Yagao's felony section 11360 charge to a misdemeanor under section 11361.8.
Whether an offense is an aggravated felony turns on whether it is a federal drug trafficking crime under title 8 United States Code section 1101(a)(43)(B). That section defines an aggravated felony as "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." (8 U.S.C. § 1101(a)(43)(B).) Section 924(c)(2) of title 18 of the United States Code provides that "[f]or purposes of this subsection, the term 'drug trafficking crime' means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46." An aggravated felony triggers mandatory removal. (See People v. Olvera (2018) 24 Cal.App.5th 1112, 1115; 8 U.S.C. § 1227(a)(2)(A)(iii) ["Any alien who is convicted of an aggravated felony at any time after admission is deportable"].) That a conviction of a controlled substance offense is grounds for removal under title 8 United States Code section 1227(a)(2)(B)(i) does not make it an aggravated felony. The distinction between the two grounds is that a person convicted of an aggravated felony is precluded from obtaining relief from removal through asylum, cancellation of removal, or voluntary departure, whereas one removable under title 8 United States Code section 1227(a)(2)(B)(i) may seek such relief. (See Moncrieffe v. Holder (2013) 569 U.S. 184, 187; Mengesha v. Holder (9th Cir. 2014) 584 Fed.Appx. 497, 498.) To the extent the majority suggests Yagao's offense is an aggravated felony because it falls within title 8 United States Code section 1227(a)(2)(B)(i) (maj. opn. ante, at p. 10), they are incorrect.
I would hold that Penal Code section 1473.7 relief is unavailable to Yagao because he has not demonstrated prejudicial error damaging his ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of his plea. (Pen. Code, § 1473.7, subd. (a)(1).)
Counsel's duty was to inform Yagao "whether his plea carrie[d] a risk of deportation," and, if the law explicitly made the deportation consequence "truly clear," that his offense rendered him subject to mandatory deportation. (Padilla v. Kentucky (2010) 559 U.S. 356, 368-369, 374.) Yagao had a high hurdle to demonstrate his counsel was ineffective in this context under Strickland v. Washington (1984) 466 U.S. 668 (Strickland). (See Padilla v. Kentucky, at p. 371 ["Surmounting Strickland's high bar is never an easy task. . . . " 'Judicial scrutiny of counsel's performance must be highly deferential' "].) "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Strickland, at p. 690; see also People v. Padilla (1995) 11 Cal.4th 891, 935, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 822-823, fn. 1, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) That means this court should presume counsel satisfied her obligation to render competent advice about deportation consequences at the time Yagao considered pleading guilty. (Padilla v. Kentucky, at p. 372.)
On this record, the trial court correctly concluded Yagao did not overcome this presumption and demonstrate his counsel failed to effectively advise him of the actual or potential adverse immigration consequences of entering into his plea, including the risk or certainty of deportation. Counsel's actions are reflected in her notes and declaration: When counsel became involved in the case, the district attorney had already charged Yagao with the transportation count, as well as one count of possession of marijuana for sale in violation of section 11359, and a charge of driving with a suspended license. Counsel observed Yagao had a prior conviction under section 11360 for which he served 58 days, and more than a month before Yagao's plea hearing discussed with him that prior conviction, as well as her immigration concerns, which he shared. Yagao told his counsel he was not deported as a result of his last case. She discussed " 'better' pleas" with Yagao including pleading to a section 11360 transportation offense as opposed to an offense of possession for sale under section 11359.
Counsel recounted her plea discussions from the day of the hearing, noting that the district attorney "wouldn't budge for [a] better offer" and that he was planning to amend the complaint to add transportation for the purpose of sales if there was no plea. She reminded Yagao of her previous advice to consult with immigration counsel, and discussed with Yagao the "benefit of 11360 and [the] fact it doesn't claim for sales at this point . . . ." She wrote that Yagao "understands . . . ." Counsel explained: "It is never my custom or practice to tell clients facing criminal charges that they will or will not get picked up by Immigration and Customs Enforcement (ICE). I have certainly never told any of my clients, nor Mr. Yagao in particular, that 'if [he was] sentenced to work furlough, "INS" [Immigration and Naturalization Service, ICE's predecessor agency] would not apprehend [him] and place [him] in removal proceedings, . . . ' and ' "INS" 'would do so if [he was] sentenced to jail . . . .' "
In her declaration, defense counsel explained she reviewed "all of the items" on the change of plea form with Yagao. The majority correctly recite the immigration admonitions within Yagao's plea form—telling him his plea may result in deportation—which Yagao initialed and signed, acknowledging "under penalty of perjury that [he has] read, understood, and initialed each item above and . . . everything on the form . . . is true and correct." Yagao's defense counsel also signed the form, indicating she personally read and explained "the entire contents of this plea form" to him and discussed the consequences of this plea, "including any immigration consequences." The record shows counsel did not advise Yagao he would not be deported as a result of his plea, or even that his transportation offense was not an aggravated felony. (Compare, Padilla v. Kentucky, supra, 559 U.S. at p. 368 [counsel provided his client "false assurance that his conviction [via guilty plea to transporting a large amount of marijuana] would not result in his removal from this country"]; People v. Ogunmowo (2018) 23 Cal.App.5th 67, 70 [counsel advised his client to plead guilty to possession for sale of a controlled substance (cocaine) in exchange for a negotiated two-year prison term, telling him "because he was a lawful permanent resident of the United States . . . he would not face any immigration consequences"].)
Defense counsel's declaration states generally: "I do advise clients on what may be 'safer' options and in this case I suggested residential rehabilitation." She continues: "Again I let the client know this is never a guarantee ICE won't contact them." (Italics added.) Additionally, as the majority point out (maj. opn. ante, at p. 5), counsel's notes from several months after the plea hearing state: "Cop'd to ct 1 since possible better dispo for immigration consequences. D advised likely INS issues b/c has prior as well. DA not willing to do anything better since he has priors." There is nothing incorrect or misleading about these statements.
To the contrary, counsel went over the possibility Yagao would be removed. The majority recount the plea colloquy with the trial court, during which Yagao expressly agreed he went over the form with counsel and understood from it that his plea "will result in removal or deportation, exclusion from admission to the United States, and denial of naturalization." These admissions, which the judge considering Yagao's Penal Code section 1473.7 motion credited over Yagao's self-serving declaration, demonstrate counsel correctly advised Yagao of the immigration consequences of his plea. Under the applicable standard of review (People v. Tapia (Aug. 31, 2018, No. F075475) ___ Cal.App.5th ___ [2018 D.A.R. 8860, 8862-8863]; People v. Ogunmowo, supra, 23 Cal.App.5th at p. 76; People v. Olvera, supra, 24 Cal.App.5th at p. 1116), this court must defer to the trial court's credibility determination and its factual finding—supported by Yagao's plea form as well as his counsel's declaration—that Yagao understood what he was signing. (Accord, People v. Tapia, ___ Cal.App.5th at p. ___ .) Though the majority correctly recite the review standard, they do not follow it.
The premise of the majority's conclusion is that defense counsel's advice was incorrect because Yagao's admission to transportation of more than 28.5 grams of marijuana was a plea to an aggravated felony. (Maj. opn. ante, at p. 10.) But "[w]hether the offense to which [Yagao] pled is classified by the federal government as an aggravated felony is not a consequence of the plea; it is simply a legal classification for certain offenses." (People v. Tapia, supra, ___ Cal.App.5th at p. ___ .) The consequence of the plea is that the charge to which Yagao pleaded guilty might lead to his deportation, and Yagao was advised of this consequence. (Accord, ibid.) Further, the majority's conclusion does not follow from Yagao's mere plea to the section 11360 offense, which is not categorically an aggravated felony. (See U.S. v. Rivera-Sanchez, supra, 247 F.3d at p. 909; U.S. v. Almazan-Becerra, supra, 537 F.3d at p. 1096.) This is reflected in the Immigrant Legal Resource Center chart in the record, which points out that a transportation offense under section 11360, if for personal use, is not an aggravated felony. Because it occurred in 2014, Yagao's plea was not to transportation of marijuana for sale. And, Yagao's plea to transportation under section 11360, even for an amount greater than 28.5 grams (which under California law in 2014 made the offense a felony, but did not convert it into transportation for sale), was indeed a "better" plea than to a section 11359 possession for sale offense, which is categorically an aggravated felony. (Roman-Suaste v. Holder (2014) 766 F.3d 1035, 1039 ["Because 'possession for sale' under . . . § 11359 necessarily comprises only possession with intent to distribute marijuana in exchange for remuneration, convictions under that provision categorically qualify as aggravated felonies"]; see also Sterling v. Sessions (9th Cir. 2018) 719 Fed.Appx. 644, 645; Arias v. Sessions (9th Cir. 2017) 707 Fed.Appx. 870.) Yagao's plea gave him room to argue his offense involved personal use, particularly in view of his possession of a medical marijuana card. Given the complexity of the situation, counsel's advice to Yagao about the risk of adverse immigration consequences, and her urging Yagao to consult with immigration counsel, was well within reasonable professional standards. (Strickland, supra, 466 U.S. at p. 688; Padilla v. Kentucky, supra, 559 U.S. at p. 369.) The record indicates that absent a plea, the district attorney threatened to amend the complaint to allege that Yagao transported the marijuana for sale, which according to immigration attorney Cahn would have ensured the "worst of all possible immigration consequences." Under the circumstances, Yagao cannot identify any other disposition, including to any immigration neutral outcome, to which the prosecutor was reasonably likely to agree. (Accord, People v. Olvera, supra, 24 Cal.App.5th at p. 1118; People v. Perez (2018) 19 Cal.App.5th 818, 830 [upholding denial of defendant's Penal Code section 1473.7 motion because there was "no indication in the record that the prosecution was willing to agree to an immigration safe disposition"].)
In 2014, when Yagao pleaded guilty to a violation of section 11360, subdivision (a), the statute punished transportation for both personal use and sale. (People v. Rogers (1971) 5 Cal.3d 129, 134-135 [construing the predecessor statute to section 11360]; People v. Eastman (1993) 13 Cal.App.4th 668, both superseded by statute as discussed in People v. Martinez (2018) 4 Cal.5th 647, 650-651.) Effective January 1, 2016, the Legislature amended section 11360 to define "transport" to mean "transport for sale." (§ 11360, subd. (c) ["For purposes of this section, 'transport' means to transport for sale"]; Stats. 2015, ch. 77, § 1, eff. Jan. 1, 2016.) Though Rose Cahn, a Criminal and Immigrant Justice Attorney at the Immigrant Legal Resource Center, represents in her declaration that "Yagao was convicted . . . [of] transportation of marijuana for sale," that assertion is not correct. --------
Yagao was certainly "deportable" as a result of his conviction (see 8 U.S.C. § 1227(a)(2)(B)(i) ["Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . . other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable"].) But counsel advised Yagao of that risk as evidenced by his plea form and the transcript of his plea hearing, which contradict Yagao's self-serving statements that he was assured he would not be deported as a consequence of his plea.
"The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." (Strickland, supra, 466 U.S. at p. 688; Padilla v. Kentucky, supra, 559 U.S. at p. 367.) Counsel's advice to Yagao about the immigration consequences of his plea satisfied her duty to do so correctly. And the court's inquiry before accepting the plea ensured that Yagao was properly advised and understood he would be deported as a result, eliminating any possibility of prejudice. For these reasons, I would affirm the order denying the Penal Code section 1473.7 motion to vacate Yagao's conviction.