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People v. Chen

California Court of Appeals, First District, Third Division

June 28, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
MIN CHANG CHEN, Defendant and Appellant.

          Trial Court: Napa County No. CR161827 Superior Court Trial Judge: Honorable Mark Boessenecker

          Stanley D. Radtke, under appointment by the Court of Appeal, for Defendant and Appellant.

          Xavier Bacerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Seth Schalit, Supervising Deputy Attorney General, Melissa J. Kendra, Deputy Attorney General, for Plaintiff and Respondent.

          SIGGINS, P.J.

         Defendant Min Chang Chen, also known as Ivy Chang Chen, appeals the denial of her motion to vacate a conviction under Penal Code section 1473.7.[1] Chen contends her trial counsel failed to properly advise her of the adverse immigration consequences of her plea agreement and that the erroneous advisement damaged her ability to meaningfully understand, defend against, and knowingly accept those consequences. We affirm the denial of her motion.

         BACKGROUND

         In May 2012, Napa Special Investigations Bureau found 262 marijuana plants growing in a house on Patricia Drive in American Canyon, following a fire at the property, where the utilities appeared to have been bypassed. Agents traced the house to Chen and her brother, who were located and arrested. They executed a search warrant for the search of Chen's family restaurant and residence in Vallejo. Chen was charged with cultivating marijuana (Health & Saf. Code, § 11358) (count one); possession of marijuana for sale (Health & Saf. Code, § 11359) (count two); and theft of services (§ 498, subd. (b)) (count three).

         In June 2012, Chen was arraigned on these charges and completed an arraignment form which stated, “If you are not a United States citizen, a plea of Guilty or No Contest could result in your deportation, exclusion from admission to this country, or denial of naturalization.” Chen signed the form, attesting she understood its contents, and her court interpreter also signed the form, certifying it had been translated to Chen.

         In July 2012, pursuant to a negotiated disposition, Chen pleaded no contest to cultivation of marijuana in violation of Health and Safety Code section 11358. Counts two and three were dismissed. The plea form indicated a maximum penalty of three years in prison for the Health and Safety Code section 11358 violation. On her plea form Chen initialed the statement regarding the consequences of her plea: “I understand that, if I am not a United States citizen, a plea of guilty or no contest could result in my deportation, exclusion from admission to this country, or denial of naturalization.” Chen also signed the form, as did her interpreter who certified it was translated to Chen.

         At the hearing, with the aid of an interpreter, the trial court asked Chen, “Did the interpreter read it to you, did you understand it, and did you sign it?” The court also asked Chen if the initials on the plea form were hers and if she had had enough time to discuss her decision with her attorney. Chen responded, “Yes.” Asked if she had any questions about the contents of the plea form, Chen said, “No.”

         Probation's presentence report was completed with the assistance of an interpreter. In her August 2012 interview with probation following her plea, Chen “admitted her actions” and stated she and her brother learned how to grow marijuana by talking to friends and watching an online video. She acknowledged that with her brother, the two spent $20, 000 on plants and supplies and did so to take care of their parents. She told probation they had no other place but in their rented house to grow the marijuana. Chen also said “she knew it was ‘totally wrong and illegal, ['] but her family needed money because their family restaurant was hurting financially.” Chen expressed willingness to comply with any term and condition imposed by the court and hopefulness she would not have to serve jail time.

         In September 2012, the trial court suspended imposition of sentence and granted Chen three years' probation. Chen was ordered to serve a 120-day term in jail; to pay various fines, fees, and restitution; and to abide by terms and conditions of probation. At the sentencing hearing, Chen acknowledged to the trial court she had reviewed all the probation conditions and accepted them.

         In July 2017, Chen moved to vacate her plea and conviction under sections 1473.7 and 1016.5. She argued her trial counsel failed to properly investigate and advise her of the immigration consequences of her plea and she was prejudiced by her counsel's deficient representation.

         In her declaration, Chen stated, “I was born on June 7, 1976 in Guangzhou, Guangdong, China.... [¶]... I came to America with my mother, father, and brother in 1992 and am a Permanent Resident. We left China because my grandfather was [granted] his immigration petition for my father and the whole family. I have not been back to China and am afraid of what would happen if I were to return.” With “her entire life... in America, ” she did not know anyone in China. She further stated she was the primary caretaker for her 68-year-old mother and 67-year-old father. As the “main person” caring for her parents, she was concerned her parents would be unable to take care of themselves, since they were poor and had no other relatives in ...


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