Filed 4/29/14 P. v. Perez CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064436

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. CRN19571)

JESUS M. PEREZ,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Charles R.

Gill, Judge. Affirmed.

         Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, Meagan J. Beale and

Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

         Jesus Perez appeals from the trial court's denial of his motion to vacate his

conviction and withdraw his guilty plea on the grounds that he was not advised of the
possible immigration consequences. He contends the court abused its discretion in

denying the motion on the basis of untimeliness and lack of prejudice. We hold the

record supports the court's finding of no prejudice, and affirm. Given this holding, we

need not evaluate Perez's challenge to the court's untimeliness finding.

                                    BACKGROUND

                                     The Guilty Plea

       In December 1969, Perez, age 22, was charged with assault with intent to commit

rape (Pen. Code,1 § 220) and residential burglary (§ 459). Perez was a Mexican citizen

with legal permanent resident status in the United States. In April 1970, he pled guilty to

the assault charge. The guilty plea form states the prosecutor agreed to dismiss the

burglary charge and to take no position at sentencing. Further, Perez was advised that the

possible sentence arising from the plea was one to 20 years in prison and that probation

was possible.

       According to information set forth in the probation report, the charged incident

occurred on November 6, 1969, after Perez had been drinking alcohol at a cafe with a

friend. Shortly after midnight, Perez's friend drove him to a different street and dropped

him off. Perez then entered a residence and went into the bedroom of a nine-year-old girl

who was asleep in her bed. Perez went to the side of her bed and grabbed her around the

neck in a choking manner. When Perez relaxed his grip, the girl screamed. Perez ran out




1      Subsequent statutory references are to the Penal Code.
                                             2
of her bedroom and was apprehended in the living room by the victim's adult male

relative. The victim had scratches and bruises on both sides of her neck.

       Perez told the authorities that he was drunk and did not remember how he got into

the victim's house. He stated he remembered being inside a house, seeing "a big girl in a

bed" with whom "he wanted to have sex"; grabbing her around the face and mouth to try

to keep her from screaming; and the next thing he knew a "big man" was choking him.

When asked if he had intended to rape the girl, he responded that "he was thinking of

raping her."

       When interviewed by the probation officer, Perez said that while drinking at the

cafe he met an "older woman" (about age 30) who told him she wanted to have sex with

him but she could not leave with him at that time because she was with two other women.

Later, when Perez's friend dropped him off, he thought he saw the woman and her friends

walking about one block away from him and entering a house. He went in their direction,

but he apparently entered a different house. He opened the front door looking for the

woman, and went into the bedroom with the intention of having sex with the woman. He

told the probation officer "everything was hazy during this period"; he did not know why

he choked the girl although he thought he wanted to "scare her"; and he "really doesn't

remember" his conduct. He said he felt responsible for and was sorry about his conduct,

and he pled guilty to assault with intent to commit rape "because he was in fact looking

for the other woman and would have attempted sex with her had he found her."




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        The probation report states that defendant came to the United States in 1964 and

he was working as a carpenter's helper and living with his parents.2 He had several prior

convictions, apparently related to problems with alcohol and drugs, including disturbing

the peace, driving under the influence, and unauthorized entry of property (when he was

"prowling" in a stranger's yard). When he committed the current assault offense, he was

on probation for the driving under the influence offense, and he had pled guilty to the

unauthorized entry offense only 10 days earlier. The probation officer opined that the

nature of the current offense was "extremely serious" and "could have resulted in great

bodily harm to the young girl." The probation officer assessed that probation had been

"rather unsuccessful," and Perez's serious problems arising from alcohol or drug use had

"now reached the point where stronger controls" were needed to curtail his behavior. The

probation officer recommended probation and a one-year placement in a county honor

camp where he could be provided a "long drying out period," counseling, and a

"supportive program."

        The trial court granted Perez three years of probation upon the condition that he

serve six months in jail, with a recommendation that he be placed in the county honor

camp.




2      In a declaration submitted in support of his motion to vacate his conviction, Perez
stated he came to the United States in 1957, and he became a legal permanent resident in
1964.
                                              4
                             Motion to Vacate the Conviction

       On May 30, 2013, Perez moved to vacate his conviction and withdraw his guilty

plea on the grounds that he was not advised of the possible immigration consequences of

his plea. The trial court was presented with the following information.

       In about 2003 or 2004, Perez was arrested by Immigration and Naturalization

Service (INS) officers and removal proceedings were commenced against him based on

his 1970 conviction. In February 2005, the Board of Immigration Appeals (BIA)

affirmed an immigration judge's April 2004 decision denying Perez's application for

relief. The BIA found that although Perez presented "outstanding equities" including

"long residency and close family ties," these factors were not outweighed by his "long

criminal history, which spans from the late 1960s to 1994, and includes a 1970 conviction

for assault with intent to rape (involving a 9-year-old victim), and a 1994 conviction for

false information which resulted in 3 years of incarceration." Further, although he had

been sober since 1994, "the length of sobriety is counterbalanced by the length of [his]

criminal history, and the nature of his crimes."

       In March 2011, the Ninth Circuit Court of Appeals granted Perez's petition

challenging the BIA's order, based on the Ninth Circuit's determination in another case

that a federal statute used in Perez's case did not apply to convictions before 1988. The

Ninth Circuit remanded the case for further proceedings, but Perez was apparently

unsuccessful in obtaining relief. On February 15, 2012, the Department of Homeland




                                             5
Security served him with an arrest warrant and released him on his own recognizance,

and a removal hearing before the immigration court was set for August 2013.3

       Perez was represented by an attorney during the federal deportation proceedings.

At some point in 2011, he hired a different immigration attorney, and this attorney

referred him to attorney Danna Cotman for purposes of investigating whether his 1970

conviction could be overturned. Perez hired Cotman in June 2012. In May 2013 (about

nine or 10 years after the commencement of the INS removal proceedings in 2003 or

2004), Cotman filed the motion to vacate Perez's conviction and withdraw his guilty plea.

Perez contended the motion should be granted because at the time of the plea he was not

advised of the potential immigration consequences, and he acted promptly to vacate his

conviction once an attorney advised him that he could pursue this relief.

       In support, Perez submitted a declaration stating that in 2004 he was arrested and

told he was to be removed from the country; this was the first time he realized his status

in the United States was in jeopardy; and he had thought his "previous convictions had all

been resolved upon completion of probation." He stated that when he pled guilty in

1970, he thought he was pleading guilty to trespassing and that he would be incarcerated

for six months, and his attorney did not tell him he could lose his status as a legal resident

and be permanently deported. He claimed that if he had been informed of the

immigration consequences, he would not have agreed to the plea and "would have gone



3      The record does not include court documents reflecting what occurred on remand
from the Ninth Circuit. However, the parties agree that Perez did not obtain relief from
removal.
                                              6
to trial and risked being sentenced to jail for years over taking a plea that guaranteed

deportation away from my family and home."

       In its opposition, the prosecution conceded it could not show Perez was advised of

the possible immigration consequences, but argued the motion should be denied as

untimely because it was not filed until 10 years after Perez knew of the possible

immigration consequences. Further, the prosecution asserted there was no showing Perez

would have declined the plea offer had he been properly advised.

       Denying the motion, the trial court found it was not filed until an "inordinate

amount of time" had passed after Perez became aware of the immigration consequences

in 2003. Further, the court found Perez had not shown that he would not have pled guilty

if he had been advised of the immigration consequences. The court assessed that Perez

would have been "very concerned" if he was advised of the immigration consequences,

but given the evidence showing his commission of a serious crime this was not enough to

show he would not have pled guilty. The court stated that although it appreciated that

Perez had "turned his life around" and "made significant progress," its decision had to be

based on California law and not on the policy issues underlying the "federal law as it

relates to immigration and immigration consequences."

                                       DISCUSSION

       As stated, we need not address the trial court's finding of untimeliness because the

record supports the court's finding of no prejudice.

       To obtain vacation of a conviction and withdrawal of a plea for failure to advise of

immigration consequences, the defendant must establish that it is reasonably probable he

                                              7
or she would not have pled guilty if properly advised. (People v. Martinez (2013) 57

Cal.4th 555, 559, 562; § 1016.5.) The test is not whether there is a reasonable probability

of a more favorable outcome had the plea been rejected, but rather whether there is a

reasonable probability the defendant would have decided to reject the plea. (Martinez,

supra, at pp. 559, 562 ["The test for prejudice thus considers what the defendant would

have done, not whether the defendant's decision would have led to a more favorable

result."], italics added.) However, the strength of the prosecution's case against the

defendant is a relevant factor to consider when deciding whether the defendant would

have accepted or rejected the plea offer had the proper advisements been provided. (Id.

at p. 564.)

       On appeal, we review the trial court's ruling for abuse of discretion. (People v.

Martinez, supra, 57 Cal.4th at p. 568; People v. Superior Court (Zamudio) (2000) 23

Cal.4th 183, 192, 210.) We draw all reasonable inferences in favor of the trial court's

ruling and cannot disturb its decision unless abuse of discretion is clearly shown. (People

v. Quesada (1991) 230 Cal.App.3d 525, 533; People v. Knight (1987) 194 Cal.App.3d

337, 344.)

       The record shows that there was compelling evidence that Perez committed assault

with intent to commit rape, and accordingly the trial court could reasonably find that if

Perez had been properly advised on immigration consequences he would have understood

that if he went to trial he would likely be convicted and be subject to deportation.

According to the probation report, Perez was captured after midnight inside a stranger's

home; the nine-year-old victim had scratches and bruises on her neck; and Perez told the

                                             8
authorities he wanted to have sex with the victim. Although Perez could have raised an

intoxication defense, the court could deduce that it was unlikely a jury would accept this

defense given the purposeful nature of Perez's conduct of entering a stranger's home

followed by his entry into the bedroom of a sleeping female. Contrary to Perez's

contention, this is not a case suggesting an intoxicated defendant who merely "stumbled"

into criminal conduct.

       Further, the record supports that the plea negotiations included an understanding

that if Perez accepted the plea offer he increased his chances of avoiding a prison

sentence. The guilty plea form states that the sentence for the assault offense was one to

20 years, but that probation was possible and the prosecutor would take no position as to

his sentence. In his declaration in support of his motion to vacate the conviction, Perez

states that at the time of his plea he thought he would be incarcerated for six months.

Considering these matters together, the trial court could reasonably infer that during the

plea negotiations Perez was told that if he accepted the plea offer the prosecutor would

not object to probation and he would likely receive probation and local jail time rather

than a prison sentence.

       Additionally, Perez has not presented anything to suggest that had he been advised

of the immigration consequences and discussed this with his counsel, he might have

rejected the plea offer based on an expectation that his counsel could secure a plea to a

lesser offense that would avoid adverse immigration consequences. (See In re Resendiz

(2001) 25 Cal.4th 230, 253-254; People v. Martinez, supra, 57 Cal.4th at pp. 566-567.)

The particularly egregious facts of the offense—involving entry into a stranger's home

                                             9
late at night and an attack on a vulnerable child—support that Perez would have been

advised that the prosecutor was not amenable to a plea to a substantially lesser offense.

        Considering all these circumstances, the trial court could conclude that upon

proper advisement Perez would have faced essentially two choices: (1) go to trial, likely

be convicted, increase the odds of going to prison, and then be subject to deportation, or

(2) plead guilty, increase the odds of not going to prison, and then be subject to

deportation. Because possible deportation was a consequence likely to result from a trial

as well as a guilty plea, the record supports that Perez would have selected a guilty plea

to improve his chances of avoiding prison. As observed by our high court, "[t]he

choice . . . that petitioner would have faced at the time he was considering whether to

plead, even had he been properly advised, would not have been between, on the one

hand, pleading guilty and being deported and, on the other, going to trial and avoiding

deportation. While it is true that by insisting on trial petitioner would for a period have

retained a theoretical possibility of evading the conviction that rendered him deportable

and excludable, it is equally true that a conviction following trial would have subjected

him to the same immigration consequences." (In re Resendiz, supra, 25 Cal.4th at p.

254.)

        Based on the showing that there was compelling evidence that Perez committed

assault with intent to commit rape and hence he would likely incur a conviction and be

subject to deportation regardless of whether he went to trial or pled guilty, the trial court

reasonably concluded that upon proper advisement there was no reasonable probability

he would have rejected a plea offer that increased his odds of not going to prison.

                                              10
                               DISPOSITION

      The order is affirmed.




                                             HALLER, J.

WE CONCUR:



MCCONNELL, P. J.



IRION, J.




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