Filed 6/30/14 P. v. Mota CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139542
v.
MARCELINO MOTA,                                                      (Sonoma County
                                                                     Super. Ct. No. SCR-624849)
         Defendant and Appellant.


         Pursuant to a plea bargain, defendant Marcelino Mota pleaded guilty to a charge of
willful infliction of corporal injury on his spouse resulting in a traumatic condition.
Defendant is an undocumented immigrant facing deportation and as a result of his
conviction is ineligible to apply for discretionary immigration relief. After sentencing,
defendant moved unsuccessfully to vacate the judgment and withdraw his plea, asserting
his trial counsel was ineffective in failing to research, advise him of, and negotiate for an
alternative plea with no immigration consequences. Defendant contends the trial court
abused its discretion in denying the motion. We find no abuse of discretion and affirm
the judgment.
                                               I. BACKGROUND
         Defendant was charged in a felony complaint, filed October 3, 2012, with willful
infliction of corporal injury on his spouse resulting in a traumatic condition. (Pen. Code,
§ 273.5, subd. (a).)1


         1
             All statutory references are to the Penal Code.
        On August 18, 2012, the victim, defendant’s wife, arrived home and found the
door locked.2 When defendant opened the door, he began yelling and cursing and
eventually grabbed a wood broom. After removing the detachable bristles, defendant
swung the four-foot-long broomstick at the victim multiple times. The victim used her
arms to protect her face and was struck once on her left forearm and several times on her
right wrist. The victim ran upstairs and told defendant she was going to call the police
and he would be deported, to which defendant responded: “ ‘I don’t care; I want to go
back to Mexico.’ ” Defendant said nothing else to the victim, did not follow her upstairs,
and instead left the home. The victim suffered contusions to both forearms and a small
fracture in her right wrist.
        On November 13, 2012, pursuant to a plea agreement, defendant pleaded guilty to
willful infliction of corporal injury under section 273.5. The court granted defendant
three years of formal probation and credit for time served. In 2013, defendant, an
undocumented immigrant, was served with a notice to appear in immigration court and
was found to be removable by the immigration judge. Although defendant is married to a
United States citizen, as a result of his section 273.5 conviction, he was ineligible to
apply for cancellation of removal—a form of discretionary immigration relief available to
aliens with a United States citizen spouse.3
        On April 15, 2013, defendant filed a motion to vacate the judgment and sought to
withdraw his plea on the basis of ineffective assistance of counsel prior to and during his


        2
            All facts relating to the crime are taken from the police report dated August 20,
2012.
        3
         An alien who is deportable from the United States may be eligible to have their
removal cancelled under section 240A(b) of Immigration and Nationality Act (8 U.S.C.
§ 1101 et seq.) if the alien (1) has been continuously present in the United States for
10 years prior to application; (2) has been a person of good moral character; (3) has not
been convicted of certain specific crimes, including crimes of domestic violence; and
(4) establishes that removal will result in exceptional and extremely unusual hardship to
the alien’s spouse, parent, or child who is a United States citizen or lawful alien.
(8 U.S.C. § 1229b(b)(1).) A conviction under Penal Code section 273.5 bars cancellation
of removal. (Gonzalez-Gonzalez v. Ashcroft (2004) 390 F.3d 649, 652.)


                                                2
plea. The trial court held an evidentiary hearing on this matter. At the hearing,
defendant’s immigration attorney, Christopher Todd, and his trial counsel, Kristine Burk,
testified.
       Todd testified he frequently consults with defense attorneys and if consulted in
this case he would have suggested a plea to dissuasion of a victim under section 136.1,
subdivision (b), which has no immigration consequences. On cross-examination,
however, Todd admitted he did not know of any facts in the police report that had to do
with dissuasion of a witness.
       Burk, defendant’s trial counsel, testified she discussed the police report with
defendant, discussed his priorities, and ascertained his immigration status. While Burk
sometimes consults outside counsel regarding immigration consequences, she did not do
so in this case because she was comfortable with her understanding of the immigration
consequences and the alternative options. She had been doing criminal defense work
since 1995 and felt comfortable with her understanding of immigration issues. In
preparation for the plea in this case, Burk researched the specific immigration
consequences of pleading to willful infliction of corporal injury under section 273.5.
       Burk considered alternative plea options with no immigration consequences. She
specifically contemplated a plea to dissuasion of a witness (§ 136.1), but believed such a
plea would not work because it did not fit the facts or match the gravity of defendant’s
offense. In Burk’s judgment, dissuasion mainly involved verbal conduct and was not
consistent with the substantial physical injury inflicted on the victim in this case. She
attempted to negotiate a plea to a lesser charge such as false imprisonment under
section 236, which also has no negative immigration consequences, but false
imprisonment also did not fit the facts and did not encompass the gravity of what had
occurred. The district attorney spurned any lesser charge, pointing out the facts would
have supported the addition of a great bodily injury enhancement. Burk recognized the
addition of a great bodily injury enhancement allegation if the case went to trial would
have made the violation a strike offense and rendered defendant ineligible for probation.
She was also concerned he could have been charged with battery inflicting serious bodily


                                              3
injury (§ 243, subd. (d)) or assault with a deadly weapon (§ 245). She felt she did not
have much leverage to negotiate a different plea in light of these risks.
          Burk testified that, in her experience, prosecutors in Sonoma County generally do
not consider and are not concerned with a person’s immigration status during plea
negotiations. She explained they did not want to give a better deal to someone who is
undocumented than they would to someone who is a citizen, on that basis alone. This
was corroborated in a declaration submitted by the deputy district attorney who
negotiated the plea, stating, “It is not the policy of this office to assist defendants in
avoiding federal consequences of their criminal actions.” The declaration further stated,
“based on the seriousness of the crime, the spousal relationship between defendant and
the victim, and the resultant injury to the victim, this office would not have charged
anything less than a felony violation of Penal Code Section 273.5.”
          Burk testified she advised defendant of his options in light of the lack of a factual
basis for an alternative plea and the risk of a great bodily injury enhancement if the
matter proceeded to trial. She informed defendant of the immigration consequences of a
plea to section 273.5 and determined defendant understood and accepted he would be
deported. Defendant never indicated it was his priority to stay in the United States or he
was willing to risk the great bodily injury enhancement; instead, he wanted to take the
credit for time served offer.4 Defendant signed a Tahl5 waiver of his constitutional rights,
which specifically notified him in Spanish of the immigration consequences of his guilty
plea.6 After being advised of his rights by the trial court, defendant voluntarily pleaded
guilty.


          4
        The district attorney offered defendant credit for his time served and felony
probation in domestic violence court.
          5
              In re Tahl (1969) 1 Cal.3d 122 (Tahl).
        The waiver read in relevant part: “I understand that if I am not a citizen of the
          6

United States, conviction of the offense(s) may/will . . . have the consequences of
deportation, exclusion from admission to the United States, or denial of naturalization
pursuant to the laws of the United States.”


                                                 4
       At the conclusion of the hearing, the trial court denied the motion to vacate the
judgment, finding defendant received effective assistance of counsel. The court found
the availability of other reasonable plea options was speculative. The court found such
options were unlikely in light of the district attorney’s plea offers, defendant’s prior
domestic violence incident, defendant’s prior conviction, the physical injury to the
victim, and the possibility of a great bodily injury enhancement being added.7
       Defendant timely appealed from the order denying his motion to vacate the
judgment.
                                     II. DISCUSSION
A. Applicable Law
       A decision to deny a motion to withdraw a guilty plea rests in the sound discretion
of the trial court and is final unless the defendant can show a clear abuse of discretion.
(People v. Waters (1975) 52 Cal.App.3d 323, 328.) On review, the court must adopt the
trial court’s factual findings if they are supported by substantial evidence. (People v.
Fairbank (1997) 16 Cal.4th 1223, 1254.) Moreover, the trial court’s witness credibility
determinations must be accepted if reasonably justified by the record. (See People v.
Quesada (1991) 230 Cal.App.3d 525, 533, superseded by statute on another point as
stated in People v. Totari (2003) 111 Cal.App.4th 1202, 1206–1207, fn. 5.)
       A defendant seeking to withdraw a guilty plea under section 1018 must
demonstrate good cause through clear and convincing evidence by showing the original
plea was not freely and voluntarily given.8 (People v. Castaneda (1995) 37 Cal.App.4th
1612, 1617.) It is not enough that a defendant has concluded he or she did not correctly
assess the wisdom of the plea bargain or otherwise has had a change of mind; so-called

       7
         Defendant had been involved in a previous domestic violence incident and has
also been convicted of unauthorized use of personal identifying information under
section 530.5.
       8
         Section 1018 reads, in relevant part: “On application of the defendant at any
time before judgment or within six months after an order granting probation is made if
entry of judgment is suspended, the court may, . . . for a good cause shown, permit the
plea of guilty to be withdrawn and a plea of not guilty substituted.”


                                              5
“buyer’s remorse” does not constitute good cause. (People v. Knight (1987)
194 Cal.App.3d 337, 344.) Even if defendant was reluctantly persuaded by his attorney
or others to plead guilty, this does not rise to the level of good cause. (People v. Ravaux
(2006) 142 Cal.App.4th 914, 919.)
       When the basis for withdrawal of a guilty plea is ineffective assistance of counsel,
a defendant has the burden of showing “(1) counsel’s performance was deficient, falling
below an objective standard of reasonableness under prevailing professional norms; and
(2) the deficient performance resulted in prejudice.” (People v. Montoya (2007)
149 Cal.App.4th 1139, 1146–1147 (Montoya), citing Strickland v. Washington (1984)
466 U.S. 668, 688 (Strickland).) Defendant’s ineffective assistance claim falls short
under both prongs.
B. Counsel’s Performance Was Not Deficient
       To satisfy the first prong of this test, a defendant must show counsel’s
performance was not only deficient, but also “cannot be explained on the basis of any
knowledgeable choice of tactics.” (Montoya, supra, 149 Cal.App.4th at p. 1147.)
Defendant contends his trial counsel was ineffective in failing to research, advise him of,
and attempt to negotiate for an alternative plea deal with a stiffer penalty than he was
offered under section 273.5 but no negative immigration consequences.9 We disagree.
       A reviewing court will indulge in a strong presumption that counsel’s performance
fell within the wide range of reasonable professional competence and that counsel’s
actions and inactions can be explained as a matter of sound strategy. (Strickland, supra,
466 U.S. at p. 689.) Here, defendant has not overcome that presumption. Counsel has a
duty to conduct a reasonable investigation or to make a reasonable decision that
investigation is unnecessary. (Id. at p. 691.) Prior to defendant’s change of plea hearing
on November 13, 2012, defendant’s trial counsel investigated the possible immigration

       9
        Defendant proposes he could have offered to plead guilty to felony witness
dissuasion and accept a midterm, two-year state prison term for the offense. (See People
v. Nuckles (2013) 56 Cal.4th 601, 611 [felony § 136.1 violation has sentencing range of
16 months, two, or three years].)


                                             6
consequences that would result from a conviction of section 273.5. Counsel’s decision
not to contact an immigration attorney is reasonable in light of her prior experience with
immigration issues and her decision to conduct her own research. Counsel also has a
duty to inform a client whether the plea carries a risk of deportation. (Padilla v. Kentucky
(2010) 559 U.S. 356, 374 (Padilla).) Counsel testified and defendant readily admits that
counsel advised him of the negative immigration consequences of a plea to section 273.5.
       Furthermore, there is a plausible tactical explanation for counsel’s decision not to
negotiate for a “plea up” to a different charge including a state prison term, but with no
adverse immigration consequences. Counsel testified she considered alternative pleas
that would not have had immigration consequences, including false imprisonment (§ 236)
or witness dissuasion (§ 136.1). The district attorney declined the lesser charge of false
imprisonment. Defense counsel did not consider witness dissuasion a viable alternative
because there was no factual basis for that charge.10 Moreover, counsel believed she
could not plausibly argue to the prosecutor that a section 136.1 plea would provide a fair
resolution to the case, since such a plea would not reflect the physical violence or severity
of the victim’s injuries involved. Defendant proposes no other viable alternative plea.
       In counsel’s past experiences with the Sonoma County District Attorney’s office,
she found prosecutors would not accept a plea to a different charge solely to protect a
defendant’s immigration status. The deputy district attorney corroborated this testimony,
noting by declaration it was not the policy of the district attorney’s office to consider
immigration consequences during plea bargaining. Counsel’s decision not to attempt to
negotiate for a plea to a section 136.1 violation was reasonable based on her past
experience with the district attorney’s office and her belief the facts did not support the
charge.

       10
         According to the police report, after the victim threatened to call the police,
defendant only said, “ ‘I don’t care; I want to go back to Mexico’ ”; he did nothing to try
to dissuade her from reporting the offense, and had no further interaction with her before
she spoke to police. Defendant claims counsel should have interrogated him and his wife
to determine if there was a factual basis for a witness dissuasion plea, but nothing in the
record supports defendant’s speculative suggestion such facts might have existed.


                                              7
       The court may also consider the effect of defendant’s statements on counsel’s
actions. (Strickland, supra, 466 U.S. at p. 691.) Defendant never indicated his
immigration was a priority, but did tell counsel his attempt to legally stay in the United
States was “probably a lost cause” and “he was okay with that.” This further explains
counsel’s choice to focus on minimizing the criminal consequences of defendant’s
conduct. In her opinion, defendant could face a longer prison sentence, strike
consequences, and ineligibility for probation if he did not take the credit for time served
offer. The trial court obviously credited counsel’s testimony on this point, and we cannot
reassess the credibility of such testimony where it is supported by substantial evidence.
(People v. Callahan (2004) 124 Cal.App.4th 198, 211.)
       Defendant also suggests counsel “rushed” him into accepting the plea offer despite
the fact section 1016.5, subdivision (b) allowed counsel to pocket the prosecution’s offer,
with no possibility of it being withdrawn, and still work on a plea that would address the
immigration problem.11 Contrary to defendant’s contention, he was not rushed into
entering the plea. Trial counsel testified she met with defendant and discussed the facts
of his case; she was willing to meet with defendant further, but he did not ask to do so.
She met with him again on the day of the plea, and got the impression defendant was
satisfied with the credit for time served offer. Given all of the circumstances described,
there was no reason to request more time to negotiate.
       Because there is a satisfactory explanation for counsel’s decision not to negotiate
for a plea with stiffer penalties but no immigration consequences, there is no basis for
finding her performance constitutes inadequate representation.




       11
         Section 1016.5, subdivision (b) provides the court must allow the defendant
additional time upon request to reconsider a plea with adverse immigration consequences.
During this time, the defendant can attempt to negotiate a different bargain that will not
have the same consequences without risking loss of the existing plea bargain. (People v.
Martinez (2013) 57 Cal.4th 555, 562 (Martinez).)


                                             8
C. No Prejudice to Defendant
       Even assuming counsel’s performance was deficient, defendant must show but for
counsel’s alleged failings, it is reasonably probable the result of the proceeding would
have been more favorable to him. (People v. Seaton (2001) 26 Cal.4th 598, 666.) Where
the issue is raised in the context of a guilty plea, the defendant must establish there is a
reasonable probability he would have rejected the existing plea offer if properly advised.
(Martinez, supra, 57 Cal.4th at p. 567.) Defendant maintains he would not have pleaded
guilty to willful infliction of corporal injury if he knew of other plea options without
immigration consequences.
       We find no reasonable probability defendant would have rejected the plea offer.
The court is under no obligation to accept a defendant’s self-serving statement, made
after conviction, that with competent advice he would have rejected the plea offer. (In re
Alvernaz (1992) 2 Cal.4th 924, 938.) Here, the evidence contradicts defendant’s
postconviction statement. Prior to conviction, defendant expressed his desire to accept
the credit for time served offer. Additionally, defendant was aware he would be deported
if convicted, yet gave his trial counsel no indication his priority was avoiding
immigration consequences rather than criminal consequences. In fact, defendant felt his
attempt to legally stay in the United States was a lost cause and he gave his trial counsel
the impression he was satisfied with the plea bargain. Even though counsel was willing
to further discuss the case, defendant never asked to do so.
       In considering whether defendant would have rejected the plea offer, the court can
consider the probability defendant would have obtained a more favorable outcome by
rejecting the plea. (Martinez, supra, 57 Cal.4th at p. 564.) Defendant’s choice during
plea negotiations is not “between, on the one hand, pleading guilty and being deported
and, on the other, going to trial and avoiding deportation.” (In re Resendiz (2001)
25 Cal.4th 230, 254, abrogated on another ground in Padilla, supra, 559 U.S. at pp. 370–
371.) A defendant who withdraws a plea loses the benefit of the bargain and may end up
with a less favorable outcome. (Padilla, at p. 373.) The defendant “must convince the



                                               9
court he or she would have chosen to lose the benefits of the plea bargain despite the
possibility or probability deportation would nonetheless follow.” (Martinez, at p. 565.)
       Here, rejecting the plea offer would not necessarily have resulted in a more
favorable outcome for defendant. As acknowledged in his signed Tahl waiver, defendant
could have received up to three years’ jail time for the section 273.5 violation alone. If
defendant rejected the credit for time served offer, he risked going to trial on the existing
section 273.5 charge plus a great bodily injury enhancement, thus facing the possibility of
a longer prison sentence, strike consequences, ineligibility for probation, as well as
negative immigration consequences. Counsel advised defendant of the risks and he opted
to take the credit for time served offer. In light of the negotiations preceding the offer
and the district attorney’s office policy against considering immigration consequences,
defendant fails to show there was any other likely scenario under which further
negotiations would have improved his choices.12 In the absence of a showing of
prejudice, there is no basis for reversal on grounds of ineffective assistance. (People v.
Davis (2005) 36 Cal.4th 510, 551.)
       Defendant has failed to meet his burden of showing the trial court abused its
discretion in denying his motion to vacate the judgment.
                                     III. DISPOSITION
       The judgment is affirmed.



       12
          Even assuming defendant could have pleaded guilty to witness dissuasion and
agreed to a midterm sentence of two years in state prison, he would not be guaranteed a
better immigration outcome. To actually obtain cancellation of removal, defendant must
establish his United States citizen wife, the victim of his offense, would suffer
“exceptional and extremely unusual hardship” due to his deportation. (8 U.S.C.
§ 1229b(b)(1)(D).) This is a high bar to clear; such hardship must be substantially
different from, or beyond, that which would normally be expected from the deportation
of a close relative. (Alvarado v. Holder (2014) 743 F.3d 271, 275.) Moreover, even if
defendant satisfies the statutory prerequisites, it remains in the discretion of the Attorney
General whether to suspend deportation. (I.N.S. v. Rios-Pineda (1985) 471 U.S. 444,
446.) Defendant offers no evidence regarding his likelihood of avoiding deportation had
he pleaded guilty to felony witness dissuasion.


                                             10
                                               _________________________
                                               Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Becton, J.*




      *
        Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



                                          11
