California Court of Appeals, Second District, Third Division
from an order of the Superior Court of Los Angeles County,
No. MA068940 Lisa Mangay Chung, Judge.
Ruzanna Poghosyan for Defendant and Appellant.
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. [*]
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).) 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.
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.
15, 2016, DeJesus bought a refrigerator from a Home Depot
store. 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.
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
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.
charge to which DeJesus pled is an aggravated felony under
federal immigration law, subjecting him to permanent removal
from the United States. Approximately one year after his
plea and sentencing hearing, federal authorities initiated
removal proceedings against him. After serving his state
prison sentence, United States Immigration and Customs
Enforcement (ICE) took him into custody.
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.
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
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
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
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.
History of section 1473.7
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.)
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, ...