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People v. Dejesus

California Court of Appeals, Second District, Third Division

July 26, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
NICOLAS DEJESUS, Defendant and Appellant.

          APPEAL from an order of the Superior Court of Los Angeles County, No. MA068940 Lisa Mangay Chung, Judge.

          Ruzanna Poghosyan for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Paul S. Thies, Deputy Attorneys General, for Plaintiff and Respondent.

          MURILLO, J. [*]

         Nicolas DeJesus (DeJesus) appeals an order denying his motion to vacate and withdraw his 2016 plea of no contest to assault with a firearm. (Pen. Code, § 245, subd. (a)(2).)[1] He contends that although his trial attorney advised him of the immigration consequences of his plea, he rendered ineffective assistance of counsel by refusing to try his case, failing to investigate the facts, and failing to negotiate an immigration-neutral disposition. (§ 1473.7, subd. (a)(1).) We conclude that DeJesus's plea was not legally invalid as he does not offer sufficient evidence of a prejudicial error which damaged his ability to defend against the adverse immigration consequences of his plea. (Strickland v. Washington (1984) 466 U.S. 668, 688; People v. Camacho (2019) 32 Cal.App.5th 998 (Camacho).) Furthermore, based upon DeJesus's custodial status, he is not eligible for relief under the statute. We therefore affirm.

         BACKGROUND

         DeJesus immigrated from the Philippines in 1992 and is a permanent legal resident. He is married to a United States citizen and is a father to seven children, all United States citizens.

         On June 15, 2016, DeJesus bought a refrigerator from a Home Depot store.[2] He put it in his vehicle and returned to the store with the receipt. He selected another refrigerator, approached the cashier, showed her the receipt, advised her that he already purchased the refrigerator, and purchased trash bags. While exiting the store, a loss prevention agent apprehended him. DeJesus initially complied with the agent's commands, but then attempted to flee on foot. The agent struggled with DeJesus, handcuffed him, and escorted him back into the store. DeJesus drew a loaded.22-caliber pistol from his pocket and pointed it at the agent. The agent succeeded in subduing and disarming him, and police recovered the loaded pistol.

         DeJesus was charged with assault with a firearm (§ 245, subd. (a)(2)), shoplifting (§ 459.5), and an enhancement for personal use of a firearm (§ 12022.5). Pursuant to a plea agreement, DeJesus pled no contest to one count of assault with a firearm (§ 245, subd. (a)(2)) in exchange for the high term of four years in the state prison. The trial court dismissed the shoplifting charge and the firearm use enhancement.

         During his change of plea hearing, there was a specific colloquy about immigration consequences and DeJesus acknowledged understanding them. The trial court advised, “[i]f you are not a citizen of the United States, your plea would result in your deportation, exclusion from admission into the United States and denial of naturalization.” DeJesus denied having been forced or threatened to plead no contest.

         The charge to which DeJesus pled is an aggravated felony under federal immigration law, subjecting him to permanent removal from the United States.[3] Approximately one year after his plea and sentencing hearing, federal authorities initiated removal proceedings against him.[4] After serving his state prison sentence, United States Immigration and Customs Enforcement (ICE) took him into custody.

         He moved to vacate his plea pursuant to section 1473.7, subdivision (a)(1) on July 6, 2018. He argued that although his trial attorney properly advised him of the immigration consequences, he failed to defend against them by going to trial, thoroughly investigating the case, or exploring alternative dispositions. Along with his own declaration, DeJesus submitted records regarding his legal status and a declaration from his post-conviction attorney.

         DeJesus's post-conviction attorney declared that the trial attorney's file did not contain any notes or research about an alternative plea. The file notes indicated that the trial attorney had advised DeJesus that the struggle with the gun was out of the camera's view, and that she did not see DeJesus pull the gun out of his pocket and point it at anyone. DeJesus did not submit a declaration from his trial attorney.

         In support of his motion to vacate, DeJesus declared that his trial attorney, a public defender, refused to take the case to trial, instead telling him “he would have to hire a good criminal defense attorney to fight the case.” The trial attorney also warned him that he could face 14 years in the state prison if he rejected the prosecutor's offer. DeJesus further declared that he could not afford to hire an attorney.

         The trial court denied the motion. It acknowledged that advisement of immigration consequences “may not be totally determinative of the issue, ” and that it had not been presented with any evidence from DeJesus's trial attorney. The trial court ruled that DeJesus had failed to show prejudice on ineffective assistance of counsel grounds, or by “showing that he would have rejected the plea bargain had he known of the adverse immigration consequences.”

         DISCUSSION

         DeJesus sought relief under section 1473.7, subdivision (a)(1), which allows a person who is no longer in criminal custody to move to vacate a conviction if it is legally invalid due to prejudicial error damaging the moving party's ability to meaningfully defend against the actual or potential adverse immigration consequences of a no contest plea.

         I. History of section 1473.7

         Effective January 1, 2017, the Legislature passed Assembly Bill No. 813 (2015-2016 Reg. Sess.) adding section 1473.7 to the Penal Code. (Stats. 2016, ch. 739, § 1.) The section provided relief to those people who were “no longer imprisoned or restrained.” (§ 1473.7.) According to the author, the bill was necessary because at the time, “under California law, there [was] no vehicle... for a person who is no longer in actual or constructive custody to challenge his or her conviction based on a mistake of law regarding immigration consequences or ineffective assistance of counsel in properly advising of these consequences when the person learns of the error post-custody.” (Sen. Com. on Public Safety, Com. on Assem. Bill No. 813 (2015-2016 Reg. Sess.) July 7, 2015, at p. 6.)

         In 2018, the Legislature amended section 1473.7 effective January 1, 2019. (Stats. 2018, ch. 825, § 2.) The amendment changed the aforementioned language and now provides in relevant part: “A person who is no longerin criminal custody may file a motion to vacate a conviction.” (§ 1473.7, ...


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