Filed 4/29/15 P. v. Cruz CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140621
v.
JUAN EMILIO CHAVEZ CRUZ,                                             (Sonoma County
                                                                     Super. Ct. No. SCR18782)
         Defendant and Appellant.


                                                             I.
                                                INTRODUCTION
         Appellant Juan Emilio Chavez Cruz appeals the trial court’s denial of his motion
to vacate his convictions because of the court’s failure to advise him of the immigration
consequences of his guilty plea, as required by Penal Code section 1016.5 (Section
1016.5). He contends the trial court erred in deciding that too much time had elapsed
since his original plea, and in finding that it was “implausible” he would not have entered
into the same negotiated disposition had Section 1016.5 been complied with by the court
that accepted his original plea. We disagree, and affirm.
                                                            II.
                       FACTUAL AND PROCEDURAL BACKGROUNDS
         A one-count information was filed on May 7, 1991, by the Sonoma County
District Attorney charging appellant with a single count of possession of cocaine for sale
(Health & Saf. Code, § 11351). After appellant pleaded not guilty to the charge, the
prosecution filed a motion to consolidate the case with three other related criminal cases


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which had been filed against appellant and a codefendant. The unopposed motion was
granted on July 26, 1991, and an amended information was then filed charging appellant
with one count of possession of cocaine for sale, and one count of sale of cocaine in
violation of Health and Safety Code sections 11351 and 11352.
          On September 4, 1991, appellant changed his plea from not guilty, and entered a
plea of guilty to both counts. The case was referred by the court to the probation
department for a presentence report, with the court indicating that if the probation
department recommended a state prison sentence, the sentence would not exceed two
years.1
          A presentence report was filed by the probation department on October 17, 1991.
In it the report chronicled appellant’s extensive criminal history, concluded that
appellant’s performance on conditional releases in the past had been “poor,” and noted
that he admitted committing the current crimes. The circumstances of the crimes
involved undercover law enforcement prearranging purchases of cocaine which
implicated appellant. A search warrant of appellant’s residence was executed, and
evidence was obtained confirming his involvement in a drug sale. The officers executing
the warrant also found additional cocaine in appellant’s residence. The report concluded
that the “circumstances surrounding these offenses appear to be relatively unremarkable
and [appellant] has acknowledged his involvement in cocaine trafficking.” Finally, the
department recommended that appellant be sentenced to four years in state prison (the
mid-term for the Health and Safety Code section 11352 violation), and that a concurrent
term of two years for count one also be imposed but stayed.
          Sentencing was held on October 23, 1991. At the hearing, defense counsel recited
that the negotiated disposition included that appellant would be sentenced to state prison
on count one for a term not to exceed two years, and that the sentence on count two

          1
          There is no transcript of the 1991 plea hearing. As it is today, the sentencing
triad for a violation of Health and Safety Code section 11351 was 24, 36, or 48 months in
state prison. Also, the sentencing triad for a violation of Health and Safety Code section
11352 was 36, 40, and 60 months.


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would be stayed or appellant would be sentenced to county jail on that violation. The
prosecutor who appeared at sentencing apparently was not the same deputy who
negotiated the plea. Counsel indicated that she agreed with the probation department that
a term of four years in state prison on the Health and Safety Code section 11352 count
was indicated rather than the two-year term discussed, because that lower term “would
not even be the mitigated term under the [section] 11352.” In response, appellant’s
counsel stated that the prosecution had “some problems with the case,” in that a
necessary witness on the section 11352 charge also had been charged with a drug offense.
       The court then imposed the agreed upon term of two years in state prison for the
violation of Health and Safety Code section 11351, and a separate term of three years in
state prison for the violation of Health and Safety Code section 11352. That second term
was stayed until appellant completed his two-year sentence on count one at which time
the three-year concurrent sentence would be permanently stayed.
       Almost 22 years later, in July 2013, appellant moved to vacate his convictions
because he was not advised of the immigration consequences of his plea pursuant to
Section 1016.5. He asserted that he had been denied legal permanent resident status and
was subject to deportation. He submitted two declarations. The first declaration stated:
“Neither the judge, the district attorney, or my own lawyer said anything to me about
there being immigration consequences for me because of this conviction. . . . If I had
known I could never be a Legal Permanent Resident because of this case, I never would
have pleaded guilty, I would have taken my chances in a jury trial[.]” Appellant
submitted a letter from the Department of Homeland Security (DHS) denying his
application for lawful permanent resident status in 2004 along with an envelope from
DHS showing the letter had never been delivered because appellant had moved. The
second declaration stated that appellant did not know his resident status had been denied
until his attorney acquired his immigration file in April 2013.
       In October 2013, the court conducted a brief hearing on the Section 1016.5 motion
without testimony or argument. The court stated it had reviewed the pleadings and the
record was not “as perfect as we would like it to be.”


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       The court then found: “The bottom line from the Court’s perspective is too much
time has passed with the original disposition appearing to be a very favorable one, it is
hard to imagine that at the time [appellant] would have done anything different, and that
it is only so many years down the road, the change in immigration, enforcement, puts
[him] in jeopardy of being deported that now it becomes a primary factor in, and a
determining factor in whether he would have entered into the plea agreement or not. I
find it implausible. There is a period of time that’s gone by that it is just too long to go
and it really argues against the importance of that decision. I wasn’t real clear on the
timeline on the additional material [appellant] provided. He missed some of the
proceedings with immigration and then they weren’t able to track him down because he
moved. So additional years go by. Respectfully[,] I deny your motion . . . .”
                                             III.
                                       DISCUSSION
       “Before accepting a plea of guilty or no contest, a trial court is statutorily required
to advise a defendant that if the defendant is not a citizen of this country, the plea could
result in deportation, exclusion from the United States, or denial of naturalization. . . .”
(People v. Arriaga (2014) 58 Cal.4th 950, 955, citing Pen. Code, § 1016.5, subd. (a).)
Section 1016.5 provides if the court fails to advise a defendant at a guilty plea of the
immigration consequences, “the court, on defendant’s motion, shall vacate the judgment
and permit the defendant to withdraw the plea of guilty or nolo contendere, and enter a
plea of not guilty. Absent a record that the court provided the advisement required by
this section, the defendant shall be presumed not to have received the required
advisement.” (Pen. Code, § 1016.5, subd. (b).)
       “To prevail on a [S]ection 1016.5 motion, a defendant must establish (1) that the
advisements were not given; (2) that the conviction may result in adverse immigration
consequences; and (3) that the defendant would not have pled guilty or no contest had
proper advisements been given. . . .” (People v. Arriaga, supra, 58 Cal.4th at
pp. 957-958, citing People v. Martinez (2013) 57 Cal.4th 555, 558–559.)



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       There is no record that appellant was advised of the immigration consequences;
we therefore presume the advisements were not properly given. Therefore, the remaining
issue is prejudice. (Martinez, supra, 57 Cal.4th at p. 559 [“Relief will be granted,
however, only if the defendant establishes prejudice.”]; People v. Superior Court
(Zamudio) (2000) 23 Cal.4th 183, 210.) Prejudice is shown if appellant can establish it
was reasonably probable he would not have pleaded guilty if properly advised.
(Martinez, at p. 559.) “[T]he question is what the defendant would have done . . . if the
court, after considering evidence offered by the parties . . . determines the defendant
would have chosen not to plead guilty or nolo contendere, even if the court also finds it
not reasonably probable the defendant would thereby have obtained a more favorable
outcome.” (Ibid., original italics.)
       To establish prejudice, “the defendant must provide a declaration or testimony
stating that he or she would not have entered into the plea bargain if properly advised. It
is up to the trial court to determine whether the defendant’s assertion is credible, and the
court may reject an assertion that is not supported by an explanation or other
corroborating circumstances.” (People v. Martinez, supra, 57 Cal.4th at p. 565.) In
Martinez, our Supreme Court identified several factors a trial court may consider to
determine the credibility of a defendant’s claim including: “the presence or absence of
other plea offers, the seriousness of the charges in relation to the plea bargain, the
defendant’s criminal record, the defendant’s priorities in plea bargaining, the defendant’s
aversion to immigration consequences, and whether the defendant had reason to believe
that the charges would allow an immigration-neutral bargain that a court would accept.”
(Id. at p. 568.)
       Here the trial court considered the time lapse between the plea hearing and
appellant’s motion to vacate, the fact that the plea deal had been a favorable one for
appellant, the fact that immigration policy had changed during the interim two decades,
and that appellant’s claim now that he would have elected to go to trial was
“implausible.”



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       We conclude that the trial court’s finding were supported by the facts, including
reasonable inferences from those facts, and its conclusions leading to the denial of
appellant’s motion fully compliant with the directives of our Supreme Court in Martinez.
       The plea negotiated by appellant’s defense counsel in 1991 was a good one from
his perspective. Even assuming that appellant could not have been sentenced
consecutively on both counts under Penal Code section 654 (cf. People v. Monarrez
(1998) 66 Cal.App.4th 710), had he gone to trial, appellant faced at least double the state
prison term that he was able to achieve through a plea bargain. In fact, despite the plea
agreement the probation department recommended the higher sentence, which also was
pointed out by the prosecutor at sentencing, who was obviously expressing “buyer’s
remorse” after the presentence report had been received. Factually, the case was a
straightforward one, and appellant acknowledged his guilt, making a determination of
guilt almost a certainty had the case proceeded to trial.
       As alluded to by the trial court, immigration policy and law on deportation at the
time his plea was entered made it much less likely that appellant faced deportation upon
his release from prison than he faces today. As explained by the United States Supreme
Court in INS v. St. Cyr (2001) 533 U.S. 289, 296-297 (St. Cyr)), the Attorney General
previously had the discretion to waive deportation for a conviction of possession of
cocaine for sale. The court noted: “[T]he class of aliens whose continued residence in
this country has depended on their eligibility for [discretionary] relief [under the law] is
extremely large, and not surprisingly, a substantial percentage of their applications for
[such] relief have been granted. Consequently, in the period between 1989 and 1995
alone, [such] relief was granted to over 10,000 aliens.” (St. Cyr, supra, 533 U.S. at
pp. 295-296.)
       The criteria for discretionary relief under prior law included “the seriousness of
the offense, evidence of either rehabilitation or recidivism, the duration of the alien’s
residence, the impact of deportation on the family, the number of citizens in the family,
and the character of any service in the Armed Forces.” (St. Cyr, supra, 533 U.S. at
p. 296, fn. 5.) “Given the frequency with which . . . relief was granted [under prior law]


                                              6
in the years leading up to AEDPA [Antiterrorism and Effective Death Penalty Act of
1996] and IIRIRA [Illegal Immigration Reform and Immigration Responsibility Act of
1996], preserving the possibility of such relief would have been one of the principal
benefits sought by defendants deciding whether to accept a plea offer or instead to
proceed to trial.” (Id. at p. 323, fns. omitted.)
       Thus, at the time appellant entered his plea, deportation was far from certain.
Consequently, had he been advised at the time that he might face deportation if he
pleaded guilty but that those chances increased if he proceeded to trial, it is doubtful that
he would have taken a chance at trial realizing also that he faced a much longer prison
term in the likely event he was found guilty.
       So too, the trial court’s inference that immigration consequences were not a
serious concern to appellant when he pleaded guilty in 1991 was most reasonable, and
consistent with the facts. As appellant’s own declaration in support of his motion to set
aside his plea makes clear, he did not even seek an adjustment of his immigration status
to permanent resident until 2002—a decade after his plea was entered. Even then he
failed to show up for the interview, albeit because of a professed “emergency,” and
thereafter made no effort to contact USCIS (United States Citizenship and Immigration
Services) to reschedule the interview, nor did he make any attempt to move his
adjustment of status forward after 2002. In fact, he claims that he did not become aware
that he was denied an adjustment of his immigration status until 2013, when his former
attorney told him about the stated governmental reason for the denial of his then-stale
application.
       Lastly, although not specifically mentioned by the trial court, but a factor
nonetheless under Martinez, appellant had a rather extensive criminal history, although
arguably less serious than the offenses to which he pleaded guilty in 1991. He had five
driving under the influence (DUI) convictions, offering only an explanation that the law
in Mexico was different and he did not know that drinking and driving in this country




                                                7
was illegal.2 He also had two petty theft convictions (Pen. Code, § 488), and two for
driving while license privileges were suspended (Veh. Code, § 14601.2, subd. (a)).
       As noted, our Supreme Court has directed courts reviewing motions to set aside
convictions where Section 1016.5 has presumptively been violated to consider a number
of factors in determining prejudice. (People v. Martinez, supra, 57 Cal.4th at p. 568.) In
virtually every respect the record supports a finding of no prejudice. Accordingly, we
discern no abuse of discretion in denying appellant’s motion to set aside his 1991
convictions based on a presumed failure to admonish him concerning the immigration
consequences of his plea pursuant to Section 1016.5.
                                            IV.
                                     DISPOSITION
       The judgment is affirmed.




       2
          Even if one were inclined to mitigate appellant’s legal or moral responsibility
for his first DUI because the laws in Mexico and California were different, it certainly
does not diminish his culpability for the subsequent four DUI’s he committed.


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                                _________________________
                                RUVOLO, P. J.


We concur:


_________________________
RIVERA, J.


_________________________
STREETER, J.




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A140621, People v. Cruz




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