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People v. Mejia

California Court of Appeals, Fourth District, Third Division

June 26, 2019

THE PEOPLE, Plaintiff and Respondent,
FERNANDO VARGAS MEJIA, Defendant and Appellant.

          Appeal from a judgment of the Superior Court of Orange County No. 93CF2691, Cheri T. Pham, Judge. Reversed and remanded with directions.

          Martin Lijtmaer for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha Cortina and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.


          MOORE, J.

         In 2016, the Legislature created a new law, which became effective in January 2017, allowing a person who is no longer in custody to file a motion to vacate a conviction because: “The conviction or sentence 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.” (Pen. Code, § 1473.7, subd. (a)(1), italics added.)[1]

         Courts routinely interpreted the new statute to mean that in order to vacate a conviction, a person had to prove an ineffective assistance of counsel (IAC) claim under well-established standards. (Strickland v. Washington (1984) 466 U.S. 668 (Strickland).) But effective January 2019, the Legislature clarified: “A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.” (§ 1473.7, subd. (a)(1), as amended by Stats. 2018, ch. 525, § 2.)

         In 1994, defendant Fernando Vargas Mejia pleaded guilty to three drug crimes; he is now facing adverse immigration consequences (mandatory deportation). In 2017, Mejia filed a section 1473.7 motion; the trial court denied the motion, finding Mejia did not prove an IAC claim. In 2018, Mejia filed a timely appeal. The Attorney General concedes the 2019 amendment to section 1473.7 is retroactive.

         We hold that to establish a “prejudicial error” under section 1473.7, a person need only show by a preponderance of the evidence: 1) he did not “meaningfully understand” or “knowingly accept” the actual or potential adverse immigration consequences of the plea; and 2) had he understood the consequences, it is reasonably probable he would have instead attempted to “defend against” the charges.

         We find that Mejia made such a showing. Thus, we reverse the trial court's order denying Mejia's section 1473.7 motion. On remand, we direct the court to allow Mejia to withdraw his 1994 guilty pleas.



         On September 16, 1993, the prosecution filed a three-count felony complaint alleging that Mejia had: 1) sold or transported cocaine; 2) possessed cocaine base for purposes of sales; and 3) possessed cocaine for purposes of sales. (Health & Saf. Code, §§ 11352, subd. (a), 11351.5, 11351.) On September 25, Mejia posted bail in the amount of $5, 000.00.

         On September 28, 1993, there was a preliminary hearing. A Santa Ana police officer testified that two weeks earlier he saw Mejia in a car with another person named Black. The officer spoke to Black, who told him that he and Mejia were both driving in separate cars when Black flagged down Mejia and “asked him for directions.” Black asked Mejia if he could purchase a small amount of cocaine. Mejia sold Black $80 worth of cocaine. The officer found cocaine in Mejia's car. The officer opined that “a portion was possessed for sales and that a portion was possessed for personal use.” Mejia told the officer this was the first time he had sold cocaine, but “he had planned to sell the additional portion of cocaine should the opportunity arise.” The magistrate held Mejia to answer. The following month, the prosecution filed an information alleging the same three counts alleged in the complaint.

         On January 10, 1994, Mejia pleaded guilty to the three crimes. Mejia initialed an immigration advisement on the plea form: “I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (Italics added.) The prosecution did not sign the plea form (indicating a “straight up” plea to the court). The court granted probation with various conditions, including a 120-day jail sentence.

         The Section 1473.3 Motion

         On September 15, 2017, Mejia filed a section 1473.7 motion to vacate his 1994 drug convictions. Mejia attached a declaration to his motion.

         Mejia averred, “I came to the United States when I was 14 years old. I came because my mother had moved here and I wanted to be with her and the rest of my family who was already here. Aside from visiting my sick father, I have remained in the United States my entire life. This is my home and I consider the United States my country.” Mejia stated, “I was never a drug dealer and always worked hard for a living. Although it was a very long time ago, I remember feeling ‘set up' by a guy who I had just met for the first time who flagged me down from his vehicle. My interactions with this man directly led to my arrest.” At the time of Mejia's arrest he was 22 years old, married, and had an infant son.

         Mejia stated that after the preliminary hearing he hired a private attorney (now deceased). Mejia stated that the attorney “hardly spoke to me or asked me any questions about what happened. He would just appear in court and tell me that we would be coming back at a future date until ultimately, I pleaded guilty to the charges.” Mejia averred, “I remember the day I pleaded guilty. Before signing the papers, my attorney told me that I had no choice but to take the deal. He said that there was cocaine in my car so I was guilty and that if I didn't accept the 120-day sentence, I would get many years in prison. He told [me] it was the best deal I would get.”

         Mejia stated that his attorney “never asked me about my immigration status even though it was clear I was not American because all our conversations occurred through a Spanish interpreter. He never explained to me that I would be imminently deportable if I accepted the charges. He told me to sign all of the boxes on a form and to just do what he told [me] to do once we were in court.” Mejia averred that: “Had I known that the charges would result an imminent deportation and would have precluded any defense to deportation, I would have chosen to fight the charges or try to negotiate a result that would not destroy my chances of staying in the United States. By this point, I had already spent 8 years in the United States and I already considered this country my home. I never would have simply accepted responsibility if I knew I'd be deported.”

         The Hearing on the Motion

         On November 3, 2017, the section 1473.7 motion came before the trial court. Mejia's counsel asked for a tentative ruling. The court indicated to counsel it would deny the motion: “I am not convinced your client would have turned down the plea bargain in this case had he been properly or adequately advised of immigration consequences, even if I were to assume that his attorney was deficient in that sense.” (Italics added.) The court noted that Mejia “admitted to selling, and he was facing a maximum of six years and four months in prison.” The court continued the matter to allow for additional briefing.

         On February 2, 2018, the matter returned on the morning calendar. The court told Mejia's counsel “the supplemental information that you provided me is not sufficient to persuade me to deviate from my tentative.” The court said, “I am not convinced that your client would have turned down this dealhad he been properly advised of immigration consequences.”[2] (Italics added.) Mejia's counsel replied, “Well, let's have my client testify and the court can judge his credibility.” The court said, “I don't believe testimony today, years later, would be helpful to me.” Counsel responded, “My client has a right to be heard in this case.” Counsel said, “I think this is reversible error for you not to allow him to -- ” The court interrupted, “Is that a threat, counsel?” Counsel replied, “It's not a threat. I just think it's ...

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