Filed 10/30/14 P. v. Mendoza CA4/3




                    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                           DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                                   G049122

        v.                                                      (Super. Ct. No. 12CF0178)

ARACELY MORALES MENDOZA,                                        OPINION

    Defendant and Appellant.



                 Appeal from an order of the Superior Court of Orange County, Kazuharu
Makino, Judge. Affirmed.
                 Law Office of Zulu Ali and Zulu Ali for Defendant and Appellant.
                 Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Charles C. Ragland and Amanda E. Casillas, Deputy Attorneys General, for
Plaintiff and Respondent.
              Aracely Morales Mendoza was charged with two counts of possessing
methamphetamine for sale with enhancements: Count 1 alleged she possessed over four
kilograms and count 2 alleged she possessed over one kilogram. She pled guilty to count
1. The trial court suspended sentencing, ordered her to serve 270 days in jail, and placed
her on supervised probation for three years. Approximately one year later, Mendoza filed
a petition for writ of error coram nobis, alleging her defense attorney failed to adequately
advise her of the immigration consequences and, therefore, she received ineffective
assistance of counsel. After holding an evidentiary hearing, the court denied the writ
petition. We affirm the trial court’s order.
                                               I
              Mendoza was born in Mexico and entered the United States in 1999. In
2012, she was arrested for possessing a large quantity of methamphetamine for sale. The
information alleged two counts. As to count 1, the information alleged the weight of the
methamphetamine exceeded four kilograms triggering an enhancement under Health and
Safety Code section 11370.4, subdivision (b)(2) [additional 5-year term]. The
information alleged the methamphetamine relating to count 2 exceeded one kilogram
triggering an enhancement under Health and Safety Code section 11370.4,
subdivision (b)(1) [additional 3-year term].
              Mendoza’s retained counsel, Richard Escobedo, advised the trial court
Mendoza would plead guilty. In May 2012, prior to taking Mendoza’s plea, the court
advised her, “If you are not a citizen of the United States, the consequence of this
conviction will be deportation, exclusion from admission to the United States or denial
of naturalization pursuant to the laws of the United States. Do you understand and give
up that right?” With the assistance of a Spanish language interpreter, Mendoza replied,
“Yes.”




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              The trial court also asked Mendoza if she had signed, initialed, understood,
and agreed with the terms and disposition stated on her plea agreement form. She
answered affirmatively to these questions.
              On the plea agreement form, Mendoza initialed next to the following
statement: “I understand if I am not a citizen of the United States, my conviction for the
offense charged will have the consequence of deportation, exclusion from admission to
the United States, or denial of naturalization pursuant to the laws of the United States.”
Her counsel signed the plea form next to the statement acknowledging he had “discussed
the possible sentence ranges and immigration consequences with defendant.” Similarly,
the Spanish language interpreter signed an acknowledgement on the plea from stating he
“translated the contents of this form to the defendant in [Spanish]. The defendant told me
he/she understood the contents of this form and initialed and signed it in my presence.”
              Before asking for Mendoza’s plea, the trial court asked if she had “an
opportunity to speak to . . . Escobedo about the facts, charges and any defenses [she] may
have in this case?” She replied, “Yes.” The court inquired, “Do you need any more time
to talk to your attorney right now?” She answered, “No.”
              When asked how she wanted to plead to count 1, Mendoza replied, “I plead
guilty.” The trial court then granted the prosecutor’s motion to dismiss count 2 and strike
the two enhancements. The court suspended the imposition of a sentence and placed
Mendoza on supervised probation for three years and ordered her to serve 270 days in
jail. Based on actual time served, the court calculated a total credit of 266 days against
the 270. The court imposed several fees and probation conditions.
              Initially, the trial court ordered Mendoza to report to probation within 72
hours of her release. Escobedo informed the court “More than likely there is going to be
an [Immigration and Customs Enforcement] ICE hold on her.” The court modified its
order, telling Mendoza, “You are ordered to report to probation within 72 hours of your



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release or if you are deported by the federal authorities then you are ordered upon your
return to this country to report to probation within 72 hours.”
              Approximately one year later, Mendoza’s counsel, Zulu Ali, filed a petition
for writ of error coram nobis to vacate the judgment entered against her. Mendoza
argued that when she entered her guilty plea her counsel did not tell her there would be
negative immigration consequences resulting from the plea. Mendoza asserted that
several months after being sentenced she was taken into “immigration custody.”
Mendoza stated it was not until then she realized she received ineffective assistance of
counsel. She explained the time to file an appeal had already passed and she had no other
remedy other than a writ for error coram nobis.
              In August 2013 the court held a hearing on the writ petition. Mendoza
testified with the assistance of a Spanish language interpreter. She stated that after
pleading guilty she thought she was going to be released and she could return home.
Mendoza admitted she knew she was illegally in the United States, and Escobedo knew
about her immigration status before she took the plea deal. Mendoza stated Escobedo
never said she would be deported by pleading guilty, and he did not tell her she would be
ineligible for asylum or other forms of discretionary relief.
              Mendoza opined she would not have taken the plea deal if she had known
the immigration consequences. She explained, “When I signed this, I didn’t know what
kind of a felony I was signing for and I didn’t know even what a felony or an aggravated
felony was. I didn’t realize how important it was to fight my case . . . . I don’t feel that
[Escobedo] helped me in anything because I really didn’t see that he was interested in my
case.” When asked if she knew what she was pleading guilty to, Mendoza replied, “I just
wanted to go to my house. I was worried about my children. I have three children.”
When asked she same question again, Mendoza stated “Right at that moment, I didn’t




                                              4
care. I was very confused. I just wanted to get out to be with my children. I told him
that I would sign, but all I wanted to do was go and see my children.”
              Mendoza stated she realized the serious nature of her conviction when the
officers at the immigration department laughed at her request for a bail amount because
she intended to pay it and go home. Mendoza stated that if she had known the
immigration consequences she would have asked her attorney to bargain for a deal that
addressed the issue or she would have taken her case to trial.
              When asked if the court gave her any explanation as to immigration
consequences, Mendoza recalled, “I really didn’t understand anything. I was very
nervous and . . . there were times that I wasn’t even answering. It was the attorney who
was answering for me. He was saying yes, yes, yes.”
              On cross-examination, Mendoza admitted she filled out and initialed the
plea form. When asked if the interpreter helped her or talked with her about the form,
Mendoza replied, “I was very nervous and either way, I didn’t understand. I was very
confused because I was worried about my children.” The prosecutor asked Mendoza if
an interpreter was present. Mendoza replied, “Yes.” When asked if the interpreter
explained the plea form, Mendoza answered, “There are so many things that he explained
to me that I really didn’t--I can’t understand everything that he explained to me. I’ve
never been in a place like this and I can’t understand so many questions just in one
moment so quickly.”
              The trial court heard a much different version of events from Escobedo. He
stated he was well aware of Mendoza’s immigration status. He explained that in 23 years
of practicing law, approximately two-thirds of his clients had immigration issues, “so I
always have to advise them of the consequences.” Escobedo stated he knew through
experience that due to the nature of Mendoza’s offense (possession for sale) she would be
deported and he told Mendoza this on several occasions. He recalled that a couple of



                                             5
weeks before the plea, he received an offer from the prosecutor and scheduled to meet
with Mendoza. He and an associate attorney (who speaks Spanish and previously worked
as an interpreter) visited Mendoza “face-to-face” and they spoke for over 30 minutes.
Escobedo remembered they discussed the consequences of the plea “and the fact she
would be deported based on the convictions.” Escobedo told Mendoza there was not
much they could do to avoid the immigration issue. He believed she understood the
immigration consequences.
              When questioned further about the nature of his discussion with Mendoza,
Escobedo stated he told her the crime would be considered an aggravated felony and
“relief would not be available.” He added the plea contemplated less than a year in jail
and “that might be a possible relief, but because it was a drug sales charge, that it wasn’t
going to be much relief for her.” Escobedo admitted he did not advise Mendoza about
whether she would be eligible for relief such as asylum or “cancellation of removal”
(8 U.S.C. § 1229b, subd. (a) [cancellation within discretion of immigration authorities]).
              After considering argument from both sides, the court denied the petition.
It stated, “The evidence that’s in the court records as far as what was done at the time of
the guilty plea all indicate the defendant was fully advised of what was required as far as
immigration consequences. [¶] Her testimony today is basically she didn’t care what she
was pleading guilty to, didn’t understand anything, but that’s in fact contradicted by what
she says at the time of the guilty plea. There is no indication from the guilty plea that she
had any confusion, lack of knowledge, lack of understanding, and her claim at this point
basically has no credibility, so the petition is denied.”
                                              II
              The Attorney General asserts this court should dismiss the appeal because
criminal defendants cannot challenge a final conviction based on ineffective assistance of
counsel by using a petition for writ of error coram nobis. The Attorney General asserts
that according to People v. Kim (2009) 45 Cal.4th 1078, 1104 (Kim), a trial court lacks

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jurisdiction to grant a writ of error coram nobis under the circumstances present in this
case. This legal contention was not raised below. And we find it interesting the Attorney
General does not discuss whether the issue was waived. The district attorney fully
participated in the hearing and presented oral argument on the merits to the trial court.
The district attorney never objected that a writ of error coram nobis was improper. We
find it surprising the waiver issue was not addressed on appeal when it was the district
attorney who failed to raise the issue, given that the Attorney General is very familiar
with making a waiver argument when a defendant has failed to raise an objection below.
              It appears the Attorney General is correct about the underlying issue:
Defendants have many remedies available to raise the issue of ineffective assistance of
counsel, but a writ of error coram nobis is not one of them. The issue may be raised by
the following means: (1) a motion to withdraw plea (Pen. Code, § 1018); (2) a
prejudgment motion for new trial (Kim, supra, 45 Cal.4th at p. 1104; Pen. Code, § 1182);
(3) an appeal (Pen. Code, § 1237); or (4) a petition for a writ of habeas corpus (People v.
Pope (1979) 23 Cal.3d 412, 426, disapproved on a different ground in People v.
Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on a different ground in People
v. Hill (1998) 17 Cal.4th 800, 823). However, a nonstatutory motion to vacate, such as a
petition for a writ of error coram nobis, is not one of the available remedies to bring a
claim for ineffective assistance of counsel. (Kim, supra, 45 Cal.4th at pp. 1096, 1104,
People v. Mbaabu (2013) 213 Cal.App.4th 1139, 1144, 1147; People v. Shokur (2012)
205 Cal.App.4th 1398, 1403-1404 (Shokur).)
              We are unpersuaded by Mendoza’s contention that our Supreme Court’s
Kim decision was superseded by the earlier decision Padilla v. Kentucky (2010) 559 U.S.
356 (Padilla). The United States Supreme Court rejected the concept that immigration
consequences of criminal convictions are collateral and so counsel need not advise clients
about them. (Padilla, supra, 559 U.S. at p. 360.) The high court analyzed whether



                                              7
Padilla’s counsel’s representation fell below an objective standard of reasonableness.
(Id. at pp. 366-368.) It did not discuss or rule on the permissible procedural vehicles for
raising the issue. As aptly stated by another appellate court in Shokur, supra, 205
Cal.App.4th at page 1405, “Padilla does not require states to provide an avenue for
noncitizens to challenge their convictions based on an erroneous immigration advisement
when no other remedy is presently available. That issue was not presented to the high
court as Kentucky permits a motion to vacate a conviction by ‘[a] prisoner in custody
under sentence or a defendant on probation, parole or conditional discharge.’ [Citations
omitted.]”
              Returning to the case before us, we conclude the above legal authority and
analysis should have been asserted by the People in the trial court in the first instance.
The record shows it was not. The issue was waived. Because the trial court held an
evidentiary hearing and ruled on the merits, we will review Mendoza’s issues on appeal
arising from that ruling. We apply the deferential abuse of discretion standard used in
reviewing rulings on petitions for writ of error coram nobis. (Kim, supra, 45 Cal.4th at
pp. 1095-1096.)
              “The pleading—and plea bargaining—stage of a criminal proceeding is a
critical stage in the criminal process at which a defendant is entitled to the effective
assistance of counsel guaranteed by the federal and California Constitutions. [Citations.]
It is well settled that where ineffective assistance of counsel results in the defendant’s
decision to plead guilty, the defendant has suffered a constitutional violation giving rise
to a claim for relief from the guilty plea. [Citations.] In Hill v. Lockhart [(1985) 474
U.S. 52, 58-59] the United States Supreme Court applied the criteria for assessing
ineffective assistance of counsel, set forth in Strickland v. Washington (1984) 466 U.S.
668 (Strickland), to a claim of incompetent advice as to the decision whether to plead
guilty. The court held that in order successfully to challenge a guilty plea on the ground
of ineffective assistance of counsel, a defendant must establish not only incompetent

                                              8
performance by counsel, but also a reasonable probability that, but for counsel’s
incompetence, the defendant would not have pleaded guilty and would have insisted on
proceeding to trial. [Citation.]” (In re Alvernaz (1992) 2 Cal.4th 924, 933-934.)
              The court did not abuse its discretion in concluding Mendoza’s counsel
adequately advised her of negative immigration consequences, and therefore, she
received effective assistance of counsel. As noted by the trial court, all the documents
and transcripts generated from that hearing showed Mendoza was fully advised of the
immigration consequences. She initialed and agreed with the terms and dispositions
listed on her plea agreement, including the term she would be deported if she was not a
citizen. Her counsel and a Spanish language interpreter signed acknowledgments
indicating the plea form was translated and they discussed the immigration consequences
with Mendoza. In addition, the court orally cautioned that if she was not a citizen she
would be deported as a result of her conviction. Mendoza told the court she had spoken
with her attorney about her case and did not need any additional time with him before
pleading guilty. All of these facts suggest Mendoza was advised of the immigration
consequences and her counsel’s performance was not deficient.
              At the later evidentiary hearing on the writ petition, the trial court heard
two very different versions of what occurred before Mendoza’s guilty plea. On appeal,
Mendoza contends her testimony provided ample evidence her counsel’s performance
was deficient. This may be true. However, it is not our job to retry the case. The trial
court had the authority to weigh the credibility of Mendoza, who essentially asserted she
was told nothing and did not understand any part of the proceedings, against the
credibility of Escobedo, who was an experienced attorney, working with many clients
facing adverse immigration consequences. We find no reason to hold the court abused its
discretion determining Escobedo was the more credible witness. It was reasonable for
the court to conclude Mendoza’s story was contradicted by what she actually said at the



                                              9
hearing before she pled guilty. She did not say or imply she was confused, needed more
time, or requested clarification because she thought too many things were being said at
the same time. The trial court asked her two times if she needed additional time to talk
with counsel and she refused. She supplied unequivocal responses to the court’s
questions about waiving her rights, understanding the immigration consequences, and
whether she wished to plead guilty or not guilty. Based on this record, we conclude it
was not an abuse of discretion for the court to determine Escobedo repeatedly warned
Mendoza she would likely be deported if she pled guilty to possessing methamphetamine
for sale. Absent evidence Escobedo’s performance was defective, we need not reach the
second prong of the Strickland test, i.e., prejudice.1
              Alternatively, Mendoza complains it was not enough for Escobedo to
discuss the immigration consequence of deportation. She suggests Escobedo performed
deficiently by failing to also explain that her guilty plea would have an effect on other
discretionary relief (such as “asylum” or “cancellation of removal”). She cites to no
authority, and we found none, holding the failure to give these additional advisements
amounted to ineffective assistance of counsel. Penal Code section 1016.5, subdivision
(a), mandates defendants must be advised of the following three distinct immigration
consequences: (1) deportation; (2) exclusion from entry into the United States, and
(3) denial of naturalization. Moreover, if we assume for the sake of argument counsel
should have discussed other discretionary relief, Mendoza has not demonstrated prejudice
because she does not suggest she would have been eligible for asylum or cancellation of
removal.




1              We note Mendoza’s appellate counsel often refers to her in the briefing as
being male, suggesting the text was cut and pasted from another source. Certainly this
did not affect our decision, but we caution counsel to be more careful in the future.

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                                     III
            The order is affirmed.




                                           O’LEARY, P. J.

WE CONCUR:



RYLAARSDAM, J.



MOORE, J.




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