Filed 8/31/18




                          CERTIFIED FOR PUBLICATION

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                 F075475
        Plaintiff and Respondent,
                                                       (Super. Ct. No. MCR44769A)
                v.

RAMIRO TAPIA,                                                  OPINION
        Defendant and Appellant.



        APPEAL from an order of the Superior Court of Madera County. Joseph A.
Soldani, Judge.

        Law Office of Ricci & Sprouls and Frank P. Sprouls for Defendant and Appellant.
        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M.
Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
                                        -ooOoo-
                                    INTRODUCTION
       Appellant Ramiro Tapia pled no contest in 2012 to one count of violating Penal
Code section 182, subdivision (a)(1), conspiracy, and one count of violating Health and
Safety Code section 11358, planting, harvesting, or processing cannabis plants.
(Undesignated statutory references are to the Penal Code.) In 2017, Tapia filed a motion
pursuant to section 1473.7 to withdraw his plea and vacate his convictions on the ground
he was not informed of the actual adverse immigration consequences of his plea. The
trial court denied the motion. Tapia appeals, contending he is entitled to the requested
relief because trial counsel provided ineffective assistance of counsel. Specifically, he
faults trial counsel for failing to advise him of the precise immigration consequences of
his plea and for failing to negotiate a plea bargain with no adverse immigration
consequences. We reject these contentions and affirm the trial court’s order denying his
motion.
                    FACTUAL AND PROCEDURAL SUMMARY
       Because Tapia pled no contest to the offenses, we take the facts of the offenses
from the probation report. On October 25, 2012, law enforcement officers from the
Madera County Narcotic Enforcement Team, Madera Sheriff’s Department, and Madera
Police Department Response Unit executed search warrants at Tapia’s residence on Road
26 and at a second location on Ellis Street.
       At the Ellis Street property, officers found 143 live marijuana plants. There were
three medical marijuana cards, including one for Tapia, that purported to allow 90 live
plants and six pounds of processed marijuana for each card holder. Inside a wooden shed
on the property were portions of marijuana plants hanging by strings and a large bucket
containing freshly cut marijuana plants. In a trailer on the property, officers found a
handgun and a shotgun; the shotgun had been reported stolen in Watsonville. The trailer
also was being used as a location to dry marijuana.



                                               2.
       According to Tapia’s brother, the marijuana was grown at the Ellis Street property
and then taken to Tapia’s residence on Road 26. Tapia was present when officers arrived
to execute the warrant at the Road 26 property. Officers found the garage of the
residence had been converted to a marijuana processing center. Among the items in the
converted garage were six pounds of marijuana and Reynolds plastic oven bags. Six
individuals were in the garage when officers arrived. Officers found a revolver and a
shotgun in Tapia’s bedroom closet and a rifle was in a shed on Tapia’s property.
       After being advised of his rights and waiving those rights, Tapia spoke with
officers. He admitted the residence was his, and he was aware of the processing center in
the garage. He hired the individuals in the garage to work for him clipping and
packaging marijuana; he paid them in marijuana. The total weight of the marijuana
recovered from the Ellis Street and Road 26 properties was 760 pounds.
       A criminal complaint was filed against Tapia and codefendants on October 29,
2012. As to Tapia, the complaint alleged violations of section 182, subdivision (a)(1),
conspiracy; Health and Safety Code section 11358, planting, harvesting, or processing
cannabis plants; and Health and Safety Code section 11359, possession for sale of
cannabis.
       On November 15, 2012, Tapia was before the trial court. At the commencement
of that hearing, defense counsel Craig Collins noted Tapia was “considering the offer,”
presumably a plea offer from the People. Collins stated Tapia was a legal permanent
resident of the United States and “I want to just see how this would affect his status
therein.” The trial court trailed the matter to later that morning and told Collins, “just let
me know when you’re ready to proceed.” The trial court also offered to put the matter
over to another day.
       After a passage of time, the matter was back on the record. Collins stated Tapia
was being assisted by the Spanish-language interpreter and would be pleading to one
count of conspiracy in violation of section 182 and one count of cultivation of marijuana

                                              3.
in violation of Health and Safety Code section 11358. In exchange for his plea, the
People would dismiss the charge of possession for sale in violation of Health and Safety
Code section 11359 and agree to felony probation.
       The trial court inquired about the “plea form,” and Collins stated the Spanish
interpreter had assisted Tapia with filling out the form. The plea form, entitled
“Declaration Regarding Guilty Plea,” bears the signatures of Tapia, the Spanish
interpreter, and defense attorney Collins.
       The plea form includes the statement that Tapia’s attorney had explained the
consequences of the plea to him and “if not a citizen, my plea may have the consequence
of my deportation, exclusion from admission to the United States or denial of
naturalization pursuant to the laws of the United States.” Tapia initialed this statement.
Above Tapia’s signature at the end of the form, it states he has read each item on the
form, discussed it with his attorney, and understands each item; his initials by each item
is proof thereof.
       During the November 12, 2012, hearing, the trial court went over each item on the
plea form. Regarding the immigration consequences of the plea, the trial court stated:

              “[D]o you understand, also, if you’re not a citizen of the United
       States and you enter a plea of guilty or no contest, it will result in your
       being deported to your country of origin and never being allowed to legally
       return to this country and never being allowed to become a legal citizen of
       this country. [¶] Do you understand this?

              “[TAPIA]: Yes.” (Italics added.)
       Tapia pled as agreed and the trial court ordered a probation report prepared. The
probation officer noted Tapia had a prior conviction for battery. When the probation
report was prepared in December 2012, Tapia was 43 years old. He informed the
probation officer that he was a citizen of Mexico, he had graduated high school in
Mexico, and he had completed one semester at the University of Guadalajara in Mexico.
There were no holds, immigration or otherwise, identified by the probation office.


                                             4.
        Three circumstances in aggravation were identified by the probation officer
pursuant to California Rules of Court, rule 4.421. The circumstances in aggravation were
identified as: (1) Tapia occupied a position of leadership in the commission of the crime
(rule 4.421(a)(4)); (2) the manner in which the crime was carried out demonstrated
sophistication and professionalism, as Tapia headed a marijuana cultivation, processing,
and distribution operation, (rule 4.421(a)(8)); and (3) the crime involved a large quantity
of contraband, 760 pounds of marijuana and 143 marijuana plants (rule 4.421(a)(10)).
        Tapia was sentenced in accordance with the plea agreement on December 13,
2012.
        On January 24, 2017, Tapia filed a motion pursuant to section 1473.7 to withdraw
his plea and vacate his convictions. The motion alleged Tapia had left the country for a
trip to Mexico, and upon reentering this country, he was detained and placed into
custody. One of the exhibits attached to the motion was documentation from the
Department of Homeland Security.
        Tapia argued that had he known he was barred from reentry or subject to
deportation under title 8 United States Code section 1226(c) because of his conviction for
a crime involving a controlled substance, or if he had been advised of the immigration
consequences of his plea, he would not have traveled outside the United States. Tapia
also argued he never would have pled to the offenses had he known of the consequences
of his plea to his status as a legal resident. In addition, the motion alleged Collins
rendered ineffective assistance by failing to explain the immigration consequences of the
plea to Tapia.
        Among the multiple exhibits attached to the section 1473.7 motion was a
document purporting to be a declaration from Tapia, but is unsigned. The unsigned
declaration asserts Tapia was not involved with the cultivation or packaging of
marijuana. It also states Tapia was not told his plea could lead to deportation or that the
offense to which he pled was an “aggravated felony.” A signed declaration from Tapia’s

                                              5.
brother and codefendant states Tapia was not involved in the marijuana cultivation and
packaging operation.
       The People filed written opposition to the section 1473.7 motion on February 17,
2017. Attached to the People’s opposition was a copy of the Declaration Regarding
Guilty Plea signed by Tapia and a declaration signed by defense counsel Collins.
       Collins declared he anticipated Tapia would be convicted on all charges had he
gone to trial. Tapia was considering the People’s original offer, so Collins asked to trail
the case to discuss with Tapia “the immigration issues involving the plea bargain.”
Collins averred he negotiated the best resolution possible, considering the facts and the
People’s position on the matter; the charge pertaining to sales or distribution of marijuana
was struck.
       Collins stated he advised Tapia, with the use of a Spanish-language interpreter, the
plea would expose him “to deportation proceedings and other negative consequences.”
Collins declared it was his “custom and practice” with clients in Tapia’s position to state
the negative consequences included “loss of permanent resident status, preclusion from
citizenship and prevention of reentry.”
       Furthermore, Collins stated he could not specifically recall, but it would have been
unusual for Tapia to have an immigration hold at that time. Collins advised Tapia
immigration officials could place a hold on him any day, and although Tapia still faced
deportation if out of custody, the chance of such proceedings decreased if Tapia was out
of custody. Collins negotiated a plea bargain allowing Tapia to be released from custody
quickly.
       Tapia filed a reply to the opposition. In the reply, he maintained he was not
advised of the specific immigration consequences of his plea nor told his plea would
expose him to certain deportation.
       A hearing was held on the section 1473.7 motion on March 3, 2017. At the
hearing, a signed copy of the declaration from Tapia was submitted. Counsel argued

                                             6.
Tapia should be allowed to withdraw his plea. With respect to immigration
consequences, Tapia’s counsel argued that when a defendant enters a plea, “there’s a
heightened duty of [defense] counsel to make it abundantly clear.” Counsel also argued
Tapia should have been told “there’s no ‘might’ about it.”
       The trial court stated it had read the transcript of the plea hearing and Tapia “was
right there and I was right here.” The trial court had told Tapia, “you leave the country,
you’re not going to be allowed back.” The trial court also stated it had told Tapia “you’re
going to be deported, you’re not going to be allowed to come back to this country, and
you’re not going to become a legal citizen” and Tapia stated he “understood that.”
       The trial court also stated counsel’s argument was Tapia “really didn’t have any
information and that’s why he left the country. He had that information.” The trial court
opined, “Sometimes we do things” thinking “we’re not going to get caught.”
       The People argued Tapia was “advised on the record” by the trial court as to
immigration consequences and Tapia was advised by Collins of specific immigration
consequences as set forth in his declaration. The People argued Tapia knew the
consequences when he left the United States, and he did so believing he would “not be
apprehended or he just chose to disregard his counsel’s advice.”
       The trial court stated it had reviewed and taken into consideration “the moving
papers and the declarations and the Court’s file, the plea declaration and the motions and
responses and responses to responses.” The trial court found Tapia’s defense attorney,
Collins, was “very competent” and had advised Tapia of the immigration consequences.
       The trial court denied the section 1473.7 motion stating the “Court does not
believe that it’s appropriate to allow the defendant to withdraw his plea in this matter”
and Tapia had not “met [his] burden in this matter.”
       Tapia filed an appeal on April 10, 2017.




                                             7.
                                       DISCUSSION
       Tapia argues the failure of defense counsel to advise him of the “precise …
immigration consequences” and the failure to negotiate an “immigration-safe” plea
provides sufficient basis for granting his section 1473.7 motion.
Section 1473.7
       Section 1473.7 was enacted in 2016 and became effective January 1, 2017. (Stats.
2016, ch. 739, § 1.) This statute provides in part:

             “(a) A person no longer imprisoned or restrained may prosecute a
       motion to vacate a conviction or sentence for either of the following
       reasons:

              “(1) 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.

              “(2) Newly discovered evidence of actual innocence exists that
       requires vacation of the conviction or sentence as a matter of law or in the
       interests of justice.” (§ 1473.7, subd. (a).)
       The statute further provides that all motions “shall be entitled to a hearing.”
(§ 1473.7, subd. (d).) The moving party has the burden of establishing by a
preponderance of the evidence any of the grounds for relief specified in subdivision (a).
(Id., subd. (e)(1).) In addition, the trial court must specify the basis for a grant or denial
of the motion. (Id., subd. (e)(2).) An order granting or denying the motion is appealable.
(Id., subd. (f).)
       Section 1473.7 allows a defendant to “challenge his or her conviction based on a
mistake of law regarding the immigration consequences of a guilty plea or ineffective
assistance of counsel in properly advising the defendant of the consequences when the
defendant learns of the error postcustody.” (People v. Perez (2018) 19 Cal.App.5th 818,
828.) “There is no requirement in the statute that the defendant had to have pled guilty




                                               8.
after the effective date of the statute.” (Ibid.) Consequently, although Tapia entered his
plea in 2012, he may seek to avail himself of the relief afforded by section 1473.7.
       A motion asserting grounds for relief pursuant to section 1473.7, subdivision
(a)(1) must be filed with “reasonable diligence” after the later of:

              “(1) The date the moving party receives a notice to appear in
       immigration court or other notice from immigration authorities that asserts
       the conviction or sentence as a basis for removal.

              “(2) The date a removal order against the moving party, based on the
       existence of the conviction or sentence, becomes final. (§ 1473.7, subd.
       (b).)
Here, Tapia was placed on formal probation for five years on December 13, 2012. One
of the conditions of probation required he not be away from his residence more than 24
hours or leave the state without prior written consent from his probation officer. Tapia
left the United States and went to Mexico while on probation; there is no indication in the
record whether he obtained prior written permission from his probation officer. Tapia
apparently returned from Mexico on March 1, 2016, and applied for admission into the
United States as a “returning lawful permanent resident.” A notice to appear before
immigration authorities was issued. A second notice to appear before the immigration
court was issued October 24, 2016, superseding the March 1, 2016, notice. Tapia filed
his motion on January 24, 2017. The People have not challenged the timeliness of the
section 1473.7 motion.
Standard of Review
       Tapia does not directly address the appropriate standard of review for a section
1473.7 motion. The People assert the standard of appellate review of a section 1473.7
motion is abuse of discretion. Subsequent to the filing of briefs in this case, two appellate
courts addressed this issue and determined the proper standard of review is de novo.
(People v. Ogunmowo (2018) 23 Cal.App.5th 67, 76; see People v. Olvera (2018) 24
Cal.App.5th 1112, 1116.) The appellate court in Ogunmowo stated:


                                              9.
       “De novo review is the appropriate standard for a mixed question of fact
       and law that implicates a defendant’s constitutional right. (People v.
       Cromer (2001) 24 Cal.4th 889, 899–902.) 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,’ and we accordingly
       review such question independently. (In re Resendiz (2001) 25 Cal.4th
       230, 248, abrogated in part on other grounds in Padilla v. Kentucky (2010)
       559 U.S. 356, 370.) We accord deference 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 resulting prejudice to
       the defendant. (In re Resendiz, supra, 25 Cal.4th at p. 249.)” (People v.
       Ogunmowo, supra, 23 Cal.App.5th at p. 76.)
       We apply this de novo standard of review in assessing the trial court’s denial of
Tapia’s section 1473.7 motion in which he argued his conviction was legally invalid
because his trial counsel, Collins, rendered ineffective assistance of counsel by failing to
adequately inform him of the immigration consequences of his plea, and he was
prejudiced as a result. (People v. Ogunmowo, supra, 23 Cal.App.5th at p. 76.)
Duty to Advise of Immigration Consequences
       An immigrant convicted of an aggravated felony at any time after admission to the
United States is deportable. (See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43).) A
conviction for violating Health and Safety Code section 11358 appears to constitute an
aggravated felony under federal law. (United States v. Reveles-Espinoza (9th Cir. 2008)
522 F.3d 1044, 1048.)
       In Padilla v. Kentucky, supra, 559 U.S. 356, the United States Supreme Court held
the Sixth Amendment guarantee to the effective assistance of counsel requires an attorney
to advise his or her client of the potential deportation consequences of the plea, and the
two-part test of deficient performance and prejudice articulated in Strickland v.
Washington (1984) 466 U.S. 668 applied to the claim. (Padilla, supra, at p. 366.) In
Padilla, trial counsel failed to advise the defendant he would face deportation if he pled
guilty to transporting a large quantity of marijuana and instead erroneously advised the



                                             10.
defendant he “‘“did not have to worry about immigration status since he had been in the
country so long.”’” (Id. at p. 359.)
        We turn now to the specific advisements given to Tapia before he entered his no
contest plea.
Specific Advisements to Tapia
        Tapia contends he was not advised of the precise immigration consequences of his
plea. The trial court found otherwise, and the evidence supports the trial court’s finding.
        We defer to the trial court’s factual findings if supported by substantial evidence.
(People v. Ogunmowo, supra, 23 Cal.App.5th at p. 76; People v. Olvera, supra, 24
Cal.App.5th at p. 1116.) Substantial evidence is evidence that is reasonable, credible,
and of solid value. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We do not reweigh
the evidence or reevaluate witness credibility. (People v. D’Arcy (2010) 48 Cal.4th 257,
293.)
        Although the focus of Tapia’s motion is not the trial court’s advisement of
immigration consequences, we address that advisement in the context of assessing
whether substantial evidence supports the trial court’s finding Tapia was advised of the
actual immigration consequences before entering his plea. The trial court provided the
advisement required by section 1016.5, subdivision (a). Instead of telling Tapia his plea
may result in deportation or exclusion of admission to the United States, the trial court
notified Tapia his plea would result in these immigration consequences when it stated,
“[I]f you’re not a citizen of the United States and you enter a plea of guilty or no contest,
it will result in your being deported to your country of origin and never being allowed to
legally return to this country and never being allowed to become a legal citizen of this
country.” (Italics added.)
        “One of the purposes of the section 1016.5 advisement is to enable the defendant
to seek advice from counsel about the actual risk of adverse immigration consequences.”
(People v. Patterson (2017) 2 Cal.5th 885, 896.) After being specifically advised by the

                                             11.
trial court his plea would lead to his deportation and denial of readmission to the United
States, Tapia did not request more time to speak with counsel or further consider the
appropriateness of entering a plea. (§ 1016.5, subd. (b).) Instead, when asked by the trial
court if he understood, Tapia affirmatively stated he understood this advisement from the
trial court.
       The record and the declaration of Collins disclose Tapia had no need for a further
conversation with defense attorney Collins after the trial court’s section 1016.5
advisement because Tapia already had conferred with Collins regarding the specific
immigration consequences to him from accepting the plea bargain. Before Collins would
allow Tapia to accept the plea bargain, he stated on the record, “There’s a legal
permanent residence and I want to just see how this would affect his status therein.” This
statement from Collins appears at page 7 of the transcript of the hearing at which Tapia
entered his plea; the trial court’s advisement is at page 15 of the transcript.
       After Collins made the statement about verifying the effect the plea bargain would
have on Tapia’s legal resident status, the trial court agreed to trail or continue the matter.
The matter trailed, during which Collins spoke with his client, Tapia. Collins states in his
declaration he specifically advised Tapia the negotiated disposition “exposed him to
deportation proceedings and other negative consequences. These would include loss of
permanent resident status, preclusion from citizenship and prevention of reentry, as this
was my custom and practice in situations similar to … Tapia’s.” Collins further stated in
his declaration he believed he advised Tapia that immigration officials “could put a hold
on him any day, and although he still faced deportation out of custody, the chances of
such proceedings decreased when not in jail.”
       Tapia was assisted by a Spanish-language interpreter when he spoke with Collins
about the immigration consequences. A Spanish-language interpreter was used when
Tapia signed the Declaration Regarding Guilty Plea and during the hearing where he
received immigration advisements and entered his plea. The record therefore discloses

                                              12.
Tapia had the means to clearly communicate with his attorney and the trial court and to
ask any question, or communicate any lack of understanding, about advisements on
immigration consequences. There is no indication on the record he did so or lacked any
understanding of the advisements. In fact, as to the trial court’s advisement, he
specifically stated on the record that he understood.
       In People v. Olvera, supra, 24 Cal.App.5th 1112, the defendant signed a plea
advisement that stated he assumed his plea “‘will, now or later, result in my deportation,
exclusion from admission or readmission.’” (Id. at p. 1115.) The defendant pled to an
aggravated felony. (Ibid.) The appellate court upheld the denial of his section 1473.7
motion, stating an advisement the plea will have deportation consequences suffices.
Tapia was similarly advised by the trial court, and defense counsel’s advisement is the
equivalent of the advisement in Olvera.
       Both in his motion and his declaration, Tapia emphasizes he was not told he was
pleading to an “aggravated felony,” apparently because that specific term was not used.
Whether the offense to which Tapia 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. The consequence of the plea is that the charge to which Tapia pled
would lead to his deportation and would bar him from reentry if he left the United States,
and Tapia was advised of these consequences.
       The only evidence he was not advised of the specific immigration consequences of
his plea is Tapia’s own self-serving declaration, claiming he was not told of the
immigration consequences. The trial court implicitly found Tapia’s declaration not
credible, considering the comment by Collins reflected in the reporter’s transcript that
Collins needed some time to determine the effect of the plea bargain on Tapia’s legal
permanent resident status and Collins’s declaration as to the substance of his off-the-
record discussion with Tapia about immigration consequences. This exchange is in



                                             13.
addition to the trial court’s advisement. We do not reevaluate witness credibility.
(People v. D’Arcy, supra, 48 Cal.4th at p. 293.)
       Therefore, we uphold the trial court’s finding Tapia was advised of the specific
immigration consequences of his plea and the effect the plea would have on his legal
resident status. (People v. Ogunmowo, supra, 23 Cal.App.5th at p. 76.) Consequently,
counsel’s performance was not deficient in this regard.
Alternative Dispositions
       Tapia also contends Collins rendered deficient representation by failing to
negotiate an “immigration safe” plea bargain. Tapia’s claim such a disposition could
have been negotiated is pure speculation without support in the record. Also lacking
evidentiary support is the claim Collins did not attempt to negotiate an alternative
disposition. Collins believed Tapia would be convicted on all charges if he went to trial.
Collins stated in his declaration that he negotiated the “best feasible resolution” he could,
considering the facts of the case, the People’s position on the matter, and Tapia’s
immigration status. Tapia’s speculation that another disposition could have been
negotiated “‘“is not evidence, less still substantial evidence.”’” (People v. Waidla (2000)
22 Cal.4th 690, 735.)
       Tapia does claim in his motion pursuant to section 1473.7 that he had no real
involvement in the marijuana enterprise and a disposition should have been negotiated
reflecting this. In declarations attached to the motion, both Tapia and his brother, who
was a codefendant, declare Tapia was not a part of the marijuana enterprise.
       The evidence at the time of Tapia’s arrest, however, disclosed Tapia was aware of
the marijuana operation and admitted the six individuals working at the Road 26 property
to process and package the marijuana were working for him. The Road 26 property
belonged to Tapia. Tapia’s brother stated at the time of the arrest the 760 pounds of
marijuana and 143 live plants belonged to him, Tapia, and a third person. Tapia’s
counsel stipulated to a factual basis for the plea, with Tapia present, stating Tapia

                                             14.
conspired to grow and did grow marijuana in Madera County. This is sufficient to
establish the factual basis for the plea and the substance of the offenses, and Tapia is
precluded from now claiming there was no basis in fact for the plea. (People v. Palmer
(2013) 58 Cal.4th 110, 117–119.)
       As for Tapia’s reliance on Lee v. United States (2017) __ U.S. __ [137 S.Ct. 1958]
to support his claim his motion should be granted, he is mistaken. In Lee, the Supreme
Court noted, “A defendant without any viable defense will be likely to lose at trial. And
a defendant facing such long odds will rarely be able to show prejudice from accepting a
guilty plea that offers him a better resolution than would be likely after trial.” (Id. at p.
___ [137 S.Ct. at p. 1966].) The reason is that “defendants obviously weigh their
prospects at trial in deciding whether to accept a plea. [Citation.] Where a defendant has
no plausible chance of an acquittal at trial, it is highly likely that he will accept a plea if
the Government offers one.” (Ibid.)
       Here, despite his claims to the contrary in his moving papers, the evidence at the
time of trial and the Collins declaration provide substantial evidence Tapia’s plea
agreement offered a better resolution than Tapia was likely to achieve after trial, with
respect to the criminal charges and immigration concerns. Collins advised Tapia he
would likely be convicted of all counts in the complaint if he went to trial, thus the plea
bargain provided a better resolution of the criminal charges. Collins also believed he
advised Tapia immigration might put a hold on him any day, and the sooner Tapia was
released from custody, the less likely it was he would face deportation proceedings. The
probation report confirms there were no holds on Tapia at the time of entry of the plea
precluding a release from custody. As such, the plea bargain allowing for a quick release
from custody to avoid any immigration holds also provided a better resolution for
immigration purposes.
       Furthermore, in Lee, the defendant was prejudiced by erroneous advice regarding
immigration consequences of a plea. When warned at the plea hearing his plea could

                                               15.
result in deportation, the defendant in Lee stated on the record that possible deportation
would affect his decision on whether to plead to the offense. (Lee v. United States, supra,
at p. ___ [137 S.Ct. at pp. 1967–1968].) Tapia made no such statement in his case during
the plea hearing. When the defendant in Lee discussed the consequences of the plea with
his attorney, the attorney affirmatively advised him, erroneously, that he would not be
deported if he pled to the offense. (Id. at p. __ [137 S.Ct. at p. 1963].) This is not what
happened in Tapia’s case; there was no erroneous advice given regarding immigration
consequences.
No Ineffective Assistance
       Substantial evidence supports the trial court’s finding Tapia was advised of the
immigration consequences of his plea. Tapia’s self-serving claim to the contrary has no
support in the record. Furthermore, there is no evidence, only speculation, that an
“immigration safe” plea could have been negotiated and the trial court found there was no
evidence the People would have agreed to a plea with lesser immigration consequences.
Also, there was no factual basis for a plea to an offense with lesser immigration
consequences. Finally, Collins’s declaration states he considered Tapia’s immigration
status in negotiating a plea.
       The facts as found by the trial court simply do not demonstrate Collins’s
performance was deficient. (People v. Ogunmowo, supra, 23 Cal.App.5th at p. 76;
People v. Olvera, supra, 24 Cal.App.5th at p. 1116.) Consequently, Tapia cannot show
he was prejudiced. (People v. Mickel (2016) 2 Cal.5th 181, 198.) Having failed to
establish either prong—deficient performance or prejudice—Tapia has not proven
ineffective assistance. (Ibid.)
       Tapia failed to meet his burden of establishing by a preponderance of the evidence
that Collins failed to advise or had misadvised him of the immigration consequences of
his plea and that he therefore did not understand or knowingly accept the immigration
consequences of the plea. (§ 1473.7, subds. (a)(1), (e)(1).)

                                             16.
       Because Tapia failed to meet his burden of proof to establish the elements of
section 1473.7, subdivision (a)(1), the trial court did not err in denying the section 1473.7
motion. (People v. Mickel, supra, 5 Cal.5th at p. 198.)
                                        DISPOSITION
       The order denying the section 1473.7 motion is affirmed.



                                                             ___________________________
                                                                         PEÑA, Acting P.J.
WE CONCUR:


__________________________
MEEHAN, J.


 __________________________
ELLISON, J.*




       *Retired   judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                               17.
