Filed 6/12/15 P. v. Garcia CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066654

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD253327)

JHONATAN GARCIA,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Robert C.

Longstreth, Judge. Affirmed.

         The Law Office of Jamahl C. Kersey, Jamahl C. Kersey; The Law Offices of Alex

Amar Kannan and Alex Amar Kannan for Defendant and Appellant.

         Kamala C. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Parag

Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.

         Jhonatan Garcia, a citizen of Mexico and a lawful permanent resident of the

United States, faces deportation after pleading guilty to the aggravated felony offense of
possessing a controlled substance─cocaine─for sale (count 2: Health & Saf. Code,

§ 11351; all further undesignated statutory references will be to the Health & Safety Code

unless otherwise specified) and admitting an allegation that the substance containing

cocaine weighed more than four kilograms (§ 11370.4, subd. (a)(2), hereafter

§ 11370.4(a)(2)).

       Garcia appeals an order denying his motion to withdraw his guilty plea,

contending the trial court abused its discretion in denying his motion because it

erroneously failed to find that his trial counsel, Stephen White, provided ineffective

assistance of counsel in violation of his federal and state constitutional rights by (1)

failing to advise him "of the specific immigration consequences he would face as a result

of his plea," and (2) not attempting to negotiate a guilty plea to the charged count 1

offense of transporting a controlled substance in an amount exceeding four kilograms

(§§ 11352, subd. (a) (hereafter § 11352(a)), 11370.4(a)(2)), which Garcia asserts "would

have been more favorable to [him]."

       We conclude Garcia has failed to meet his burden of demonstrating the court

abused its discretion in denying his motion to withdraw his guilty plea because he has

failed to establish that White provided ineffective assistance. Accordingly, we affirm the

order denying Garcia's motion.




                                              2
                                     BACKGROUND

       A. Factual Background1

       Garcia was born in Tijuana, Mexico, and is a citizen of Mexico. He became a

lawful permanent resident of the United States through his ex-wife in 2005.

       On January 9, 2014, San Diego Police Department officers stopped Garcia's

vehicle as part of a narcotics investigation conducted by the Narcotics Task Force.

Garcia was driving the vehicle when it was stopped. A search of the trunk revealed a

white trash bag that contained four brick-type packages of cocaine, each of which

weighed about one kilogram. Garcia was arrested.

       After he waived his Miranda2 rights, Garcia told the officers that an unknown

male on a motorcycle, who had previously called him from a phone number in Mexico,

met him at a predetermined location, placed the white trash bag in his trunk, and told him

to keep the bag at his house for safekeeping until he received instructions on where to

meet later. Garcia admitted he had met the unknown male on several prior occasions,

and on each occasion the man had paid Garcia $400 to take the trash bag and keep it at

his home, and Garcia later had met the man at another location. Garcia also admitted he

suspected he was involved in moving drugs.




1       As Garcia pleaded guilty to count 2 prior to trial, the following summary of the
facts is derived from the probation officer's report and Garcia's testimony at the hearing
on his motion to withdraw his guilty plea.

2      Miranda v. Arizona (1966) 384 U.S. 436.
                                             3
       Garcia told the police he had six more kilograms of cocaine at his house. A search

of his home revealed the six kilograms of cocaine.

       B. Procedural Background

       In a felony complaint, the San Diego County District Attorney's Office charged

Garcia in count 1 with transportation for sale of a controlled substance (§ 11352(a)) and

alleged that the substance containing cocaine exceeded four kilograms by weight

(§11370.4(a)(2)). As pertinent here, the complaint also charged Garcia in counts 2 and 3

with possession for sale of a controlled substance (cocaine) in violation of section 11351

and alleged that the substance containing cocaine exceeded four kilograms by weight

within the meaning of section 11370.4(a)(2).

       In January 2014, pursuant to a plea agreement, Garcia pleaded guilty to count 2

(possession of a controlled substance for sale) and admitted the count 2 allegation that the

substance containing cocaine weighed more than four kilograms.

       On February 26 that year, the court sentenced Garcia pursuant to the plea

agreement. Specifically, the court imposed but stayed execution of a three-year prison

sentence for Garcia's count 2 conviction, and also imposed but stayed execution of a five-

year sentence for Garcia's admission of the count 2 allegation that the substance

containing cocaine weighed more than four kilograms. The court granted Garcia three

years' formal probation and ordered him to serve 180 days in local custody. Garcia was

eligible for work furlough, and he served his sentence through the work furlough

program.



                                             4
       Thereafter, as a result of his conviction in this matter, Garcia was detained by U.S.

Immigration Customs and Enforcement (ICE).

       On July 17, 2014, Garcia filed his motion to withdraw his guilty plea (discussed,

post). On August 20 of that year, following an evidentiary hearing at which Garcia (who

was in federal custody) and his trial counsel White testified, the court denied the motion.

Garcia's timely appeal from the order denying his motion to withdraw his guilty plea

followed.

                                       DISCUSSION

       Garcia contends the trial court abused its discretion by erroneously failing to find

that his trial counsel, White, provided ineffective assistance in violation of the federal and

state Constitutions by (1) failing to advise Garcia "of the specific immigration

consequences he would face as a result of his plea," and by (2) not attempting to

negotiate a guilty plea to the charged count 1 offense of transporting a controlled

substance in an amount exceeding four kilograms (§§ 11352(a), 11370.4(a)(2)), which

Garcia asserts "would have been more favorable to [him]." Garcia's contention is

unavailing. We conclude Garcia has failed to meet his burden of demonstrating the court

abused its discretion in denying his motion to withdraw his guilty plea because he has

failed to establish that White provided ineffective assistance.




                                              5
       A. Background

      1. Guilty plea form and the advisement in paragraph No. 7d. that the guilty plea
would result in deportation

       On the completed guilty plea form that Garcia, White, the Spanish language

interpreter, the prosecutor, and the court all signed, Garcia initialed boxes indicating he

was freely and voluntarily entering his guilty plea and he understood the enumerated

constitutional trial rights he was giving up.

       Garcia also initialed the box next to paragraph No. 7d. of the form, which

specifically advised him his guilty plea "will result" in his deportation if it is a plea "to an

'Aggravated Felony' listed on the back of this form":

           "I understand that if I am not a U.S. citizen, this plea of Guilty/No
           Contest may will result in my removal/deportation, exclusion from
           admission to the U.S. and denial of naturalization. Additionally, if
           this is a plea to an 'Aggravated Felony' listed on the back of this
           form, then I will be deported, excluded from admission to the U.S.,
           and denied naturalization." (Italics added.)

       The typewritten word "may" in the first sentence of paragraph No. 7d. is crossed

out and the word "will" is handwritten above it.

       Page 4 of the guilty plea form, titled "AGGRAVATED FELONIES," lists the

following offenses (among others) as aggravated felonies: "Felony Possession of Any

Controlled Substance," "Possession for Sale of Any Controlled Substance," "Sale of Any

Controlled Substance," and "Transportation of Any Controlled Substance."

       At the top of that page, an advisement specifically informed Garcia that, if he was

a "non-citizen," a conviction of one of the listed aggravated felonies "WILL RESULT" in

his deportation:

                                                6
          "ANY CONVICTION OF A NON-CITIZEN FOR AN
          'AGGRAVATED FELONY' AS DEFINED UNDER 8 U.S.C.
          1101(a)(43) WILL RESULT IN REMOVAL/DEPORTATION,
          EXCLUSION, AND DENIAL OF NATURALIZATION."
          (Original emphasis)

      2. Change of plea hearing and the court's advisement that Garcia would be
deported as a consequence of his guilty plea

       During the January 2014 change of plea hearing at which Garcia entered his guilty

plea, the court showed Garcia the completed guilty plea form and asked him whether he

had gone over the form with his attorney, and whether the initials in the boxes, the

signature, and the thumbprint were his. Garcia answered "Yes" to these questions.

Garcia also indicated he understood the terms of the plea agreement and he was agreeing

to waive his constitutional rights.

       Regarding the possible immigration consequences of Garcia's plea, the court asked

him whether he understood that his guilty plea would result in his deportation:

          "Do you understand, sir, that if you are not a U.S. citizen, your plea
          of guilty will result in your removal or deportation, exclusion from
          admission to the United States and denial of naturalization?" (Italics
          added.)

       Garcia replied, "Yes, sir." Garcia then pleaded guilty to the count 2 aggravated

felony offense of possessing a controlled substance for sale (§ 11351) and admitted the

count 2 allegation that the substance containing cocaine weighed more than four

kilograms (§ 11370.4(a)(2)).

       3. Garcia's opposed motion to withdraw his guilty plea

       On July 17, 2014, Garcia filed his motion to withdraw his guilty plea pursuant to

Penal Code section 1018 (discussed, post). Acknowledging that he had pleaded guilty to

                                             7
an aggravated felony (specifically, a violation of section 11351), Garcia asserted that

White rendered ineffective assistance of counsel because he "failed to defend [Garcia]

from the actual adverse immigration consequences of the plea." Specifically, he

complained that if White had properly advised and defended him, he would have pleaded

guilty to section 11352(a) (count 1) so that he "would have [had] the opportunity to argue

that his conviction was not an aggravated felony" that would subject him to deportation.

       The People filed written opposition to the motion, arguing that Garcia had failed to

meet his burden under Penal Code section 1018 of demonstrating by clear and convincing

evidence that good cause existed for allowing him to withdraw his guilty plea. Asserting

that this matter was "an example of 'buyer's remorse,'" the People argued that "section

11352(a) was not the offer in this case and therefore was not an available option for

[Garcia] to plead to." The People also argued that White had "walked [Garcia] through

the change of plea" and had "advised [him] on the offer which was [] section 11351, not

11352(a)."

       a. Evidentiary hearing and ruling

       Garcia and White testified at the hearing on Garcia's motion to withdraw his guilty

plea. Garcia testified that White advised him to take the plea offer under which he would

plead guilty to possession for sale of a controlled substance and admit that the weight of

the substance exceeded four kilograms, and he would get a 180-day sentence. Garcia's

new counsel, Jamahl Kersey, showed him the completed guilty plea form and read the

text of paragraph 7d. (discussed, ante). Garcia indicated that he recognized the form and

acknowledged that he signed the form and initialed the box next to paragraph 7d. Garcia

                                             8
also acknowledged that White had explained paragraph 7d. to him. Garcia stated that he

told·White he was not a citizen and that he did not want to be deported.

       Garcia also testified that White asked him whether he was caught inside the

United States or while crossing the border, because he would be automatically deported if

he was caught while crossing the border. Garcia told White he was caught inside the

United States. White also asked him whether he had an immigration hold, and Garcia

told him he did not have an immigration hold. Garcia testified that White told him that

he would not have a problem if "immigration" never got ahold of him.

       Kersey asked Garcia whether the judge at his change of plea hearing had asked

him whether he understood that, if he was not a United States citizen, his guilty plea

would result in his removal or deportation and the denial of naturalization and exclusion

from admission. Garcia did not answer that question and indicated that, with respect to

paragraph No. 7d., White told him, "We don't have to worry about this because you don't

have an ICE hold." Garcia indicated that, based on his discussions with White, he

believed he would not be deported.

       Following up on his question, Kersey asked Garcia, "[W]hen the judge [at the

change of plea hearing] asked you if you understood paragraph [No. 7d.], you had said

'Yes,' right?" Garcia replied, "Yes," and acknowledged he had understood paragraph No.

7d.

       Garcia testified he was not aware the word "may" had been changed to "will" in

paragraph 7d., and he did not realize at the time he entered the plea that his deportation



                                             9
would be guaranteed. He also testified he would not have pleaded guilty had he known

he would be deported.

        Garcia also testified he had never been "locked in jail" and acknowledged he was

"desperate to get out."

        On cross-examination, Garcia acknowledged that the court had informed him he

"would" be deported, as opposed to "could" be deported, as a result of his count 2 guilty

plea.

        White testified on behalf of the prosecution that, after "quite a bit" of negotiating,

the prosecutor offered Garcia, his former client, a deal under which he would plead guilty

to the possession charge and admit the weight enhancement allegation, a three-year

prison sentence would be stayed, the weight enhancement would be stayed, and he would

be allowed to participate in the work furlough program.

        Regarding the advice he gave to Garcia concerning the deportation issue, White

testified:

             "I believe I advised him that at the time that he pled guilty, there was
             not an INS hold, that he was free to bail out, that he was eligible for
             work furlough, and that some time down the road I would anticipate,
             perhaps when he went to renew his green card, he may face
             consequences on the immigration side, and that my experience with
             immigration is that some sort of—you don't know whether they're
             going to come and pick you up or not. I mean, sometimes they do
             and sometimes they don't." (Italics added.)

        White indicated that Garcia appeared to fully understand the immigration

consequences of his plea. White testified that Garcia was advised both by the court and

in the executed change of plea form that he would be deported if he pleaded guilty.


                                               10
White stated he was aware that the word "may" in paragraph No. 7d. of the change of

plea form was stricken out and replaced with the word "will," but he could not recall who

made the change.

       On cross-examination, White testified that when Garcia retained him, Garcia was

not under any kind of an immigration hold and, therefore, he was eligible for a work

furlough. White was aware that deportation was a possibility because Garcia was

pleading to a felony drug charge. White stated he did not know "for certain" whether

Garcia was going to be deported. White also testified he advised Garcia that "at any

time, any place, ICE may come along and pick him up." (Italics added.) White believed

the work furlough program was a relatively safe alternative for Garcia because there

would not be any ICE agents checking for citizenship or immigration status there.

       White testified he was aware that possession for sale of a controlled substance is

an aggravated felony under immigration law and that an aggravated felony was a

deportable offense. He did not know "for sure," however, whether a plea to a

transportation of a controlled substance charge would have been more favorable to Garcia

as a noncitizen.

       White testified that the prosecutor did not offer a plea to the transportation charge.

He also testified that he negotiated the best possible deal for Garcia, and Garcia took the

deal willingly since he would be able to participate in the work furlough program and

there was no immigration hold.




                                             11
       i. Ruling

       Based on the testimony presented, the court denied Garcia's motion to withdraw

his guilty plea. The court found that Garcia was advised he would be deported and that

White had not misadvised him. Finding that White had advised Garcia that deportation

was a requirement, the court stated that White had also advised Garcia that "maybe that

requirement [would not] be executed because ICE screws up." Finding also that Garcia

was not a credible witness, the court stated:

             "I think [Garcia's] testimony now that, 'Well, I didn't believe the
             judge because of what my attorney said,' I don't credit that. I don't
             believe it. I don't think that was what was going on."

       B. Applicable Legal Principles

       1. Ineffective assistance of counsel

       "Plea bargaining and pleading are critical stages in the criminal process at which a

defendant is entitled, under both the Sixth Amendment to the federal Constitution and

article I, section 15 of the California Constitution, to the effective assistance of legal

counsel." (In re Resendiz (2001) 25 Cal.4th 230, 239, abrogated on another ground by

Padilla v. Kentucky (2010) 559 U.S. 356, 369-370 (Padilla).)

       "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." (In re Alvernaz (1992) 2 Cal.4th

924, 934.)

       To successfully challenge a guilty plea on the ground of ineffective assistance of

counsel, the defendant must establish not only that his counsel was ineffective, but also

                                                12
prejudice resulting therefrom; that is, he must establish a reasonable probability that, but

for his counsel's incompetence, he would not have pleaded guilty and would have

insisted, instead, on proceeding to trial. (In re Resendiz, supra, 25 Cal.4th at pp. 239,

253, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688; Hill v. Lockhart

(1985) 474 U.S. 52, 58-59.)

       2. Motions to withdraw a guilty plea

       Penal Code section 1018 provides, in 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." In general,

"[m]istake, ignorance or any other factor overcoming the exercise of free judgment is

good cause for withdrawal of a guilty plea." (People v. Cruz (1974) 12 Cal.3d 562, 566.)

       However, "[a] plea may not be withdrawn simply because the defendant has

changed his mind." (People v. Nance (1991) 1 Cal.App.4th 1453, 1456 (Nance).) The

defendant has the burden to show, by clear and convincing evidence, that there is good

cause for withdrawal of his or her guilty plea. (Id. at p. 1457.)

       The decision to grant or deny a motion to withdraw a guilty plea is left to the

sound discretion of the trial court. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254

(Fairbank); Nance, supra, 1 Cal.App.4th at p. 1457.) "A denial of the motion will not be

disturbed on appeal absent a showing the court has abused its discretion." (Nance, at p.

1456; see also Fairbank, at p. 1254 ["A decision to deny a motion to withdraw a guilty



                                             13
plea . . . is final unless the defendant can show a clear abuse of [the trial court's]

discretion."].)

       "Moreover, a reviewing court must adopt the trial court's factual findings if

substantial evidence supports them." (Fairbank, supra, 16 Cal.4th at p. 1254.) Thus, our

role in determining whether Garcia has satisfied his burden of producing clear and

convincing evidence in the trial court in support of his motion to withdraw his guilty plea

is a limited one, because "'[a]ll questions of the weight and sufficiency of the evidence

are addressed, in the first instance, to the trier of fact, in this case, the trial judge. We

cannot reverse his order if there is substantial evidence or a reasonable inference to be

drawn from it which supports the order. Where two conflicting inferences may be drawn

from the evidence it is our duty to adopt the one supporting the challenged order.'"

(People v. Harvey (1984) 151 Cal.App.3d 660, 667.)

       C. Analysis

       Garcia's contention that the court abused its discretion in denying his motion to

withdraw his guilty plea is premised on his claim that White provided ineffective

assistance of counsel by (1) failing to advise Garcia "of the specific immigration

consequences he would face as a result of his plea," and by (2) not attempting to

negotiate a guilty plea to the charged count 1 offense of transporting a controlled

substance in an amount exceeding four kilograms, which Garcia asserts "would have

been more favorable to [him]." We reject Garcia's contention because the premise on

which it is based is not supported by the record.



                                               14
       We first conclude that Garcia has failed to meet his burden of demonstrating that

White provided ineffective assistance of counsel by failing to advise him of the

immigration consequences he would face as a result of his plea. In Padilla, supra, 559

U.S. 356, the United States Supreme Court explained that counsel "must inform [a

noncitizen] client whether his plea carries a risk of deportation." (Id. at p. 374.)

       Here, the guilty plea form Garcia initialed and signed informed him that he would

be deported if he was not a United States citizen and he was pleading guilty to one of the

aggravated felonies listed in the form. Specifically, Garcia initialed the box next to

paragraph No. 7d., which advised him his guilty plea "will result" in his deportation if it

"is a plea to an 'Aggravated Felony' listed on the back of this form." Page 4 of the guilty

plea form, titled "AGGRAVATED FELONIES," informed Garcia that, if he was a "non-

citizen," a conviction of one of the aggravated felonies listed on that page "WILL

RESULT" in his deportation. One of the listed aggravated felonies was "Possession for

Sale of Any Controlled Substance." By pleading guilty to possession of a controlled

substance for sale in violation of section 11351, Garcia pleaded guilty to an aggravated

felony that he knew was a was a deportable offense.

       The record also shows that, at the change of plea hearing, the court asked Garcia

whether he understood that, if he was not a United States citizen, his guilty plea would

result in his removal or deportation and the denial of naturalization and exclusion from

admission. Garcia replied, "Yes, sir," and then pleaded guilty to count 2.

       At the evidentiary hearing on his motion to withdraw his guilty plea, Garcia

acknowledged on direct examination that he had reviewed paragraph No. 7d. with White

                                              15
and he understood its provisions when he initialed the box next to it. On cross-

examination, Garcia also acknowledged that the court had informed him at the change of

plea hearing that he "would" be deported, as opposed to "could" be deported, as a result

of his count 2 guilty plea. In addition, White testified that he spoke with Garcia about the

specific immigration consequences of his plea and how, "at any time, any place, ICE may

come along and pick him up." Furthermore, in denying Garcia's motion, the court found

that Garcia was not a credible witness. Specifically, the court stated: "[Garcia's]

testimony . . . that, 'Well, I didn't believe the judge [at the change of plea hearing]

because of what my attorney said,' I don't credit that. I don't believe it." We do not

reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of

witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51

Cal.3d 294, 314.).

       The foregoing record shows that White properly advised Garcia that his guilty plea

to the aggravated felony offense of possessing a controlled substance for sale in an

amount exceeding more than four kilograms carried "a risk of deportation." (Padilla,

supra, 559 U.S. at pp. 373-374.)

       Garcia's reliance on People v. Soriano (1987) 194 Cal.App.3d 1470, is misplaced.

In that case, the defendant's trial counsel gave him "only a pro forma caution" that his

guilty plea might have immigration consequences, and the defendant's declaration

showed he did not know he was exposing himself to deportation by pleading guilty. (Id.

at p. 1482.) Here, Garcia was fully aware from the advisements in the guilty plea form,

the trial court's admonition at the change of plea hearing, and his discussions with White

                                              16
that he was exposing himself to the risk of deportation by pleading guilty to count 2.

Unlike defense counsel in Soriano, White did not give Garcia a mere pro forma caution.

White testified at the hearing on Garcia's motion to withdraw his guilty plea that he spoke

with Garcia about the specific immigration consequences of his plea and how, "at any

time, any place, ICE may come along and pick him up."

       For all of the foregoing reasons, we conclude that Garcia has failed to meet his

burden of demonstrating that White provided ineffective assistance of counsel by failing

to advise him of the immigration consequences of his plea.

       We also conclude Garcia has failed to meet his burden of demonstrating that

White provided ineffective assistance of counsel by not attempting to negotiate a guilty

plea to the charged offense of transporting a controlled substance in an amount exceeding

four kilograms. White testified that the prosecutor did not offer a plea to the

transportation charge. Such an offer was "not on the table." He also testified that he

negotiated the best possible deal for Garcia, who took the deal willingly.

       Garcia's reliance on People v. Bautista (2004) 115 Cal.App.4th 229 is unavailing.

Bautista is distinguishable in that the evidence showed that defense counsel gave the

defendant "only a pro forma caution" that his guilty plea might have immigration

consequences and that the prosecutor would have accepted an offer that the defendant

plead to an offense that was not an aggravated felony for immigration purposes. (Id. at

pp. 241-242.) White did not give Garcia a mere pro forma caution, and White's

testimony, which the court credited, shows the prosecutor was not amenable to accepting



                                             17
an offer that Garcia plead guilty to an offense that was not an aggravated felony for

immigration purposes.

       In sum, as Garcia has failed to meet his burden of showing that White's

performance fell below an objective standard of reasonableness under prevailing

professional norms, we conclude that Garcia also has failed to meet his burden under

Penal Code section 1018 of demonstrating by clear and convincing evidence that good

cause existed for allowing him to withdraw his guilty plea. Accordingly, we affirm the

order denying Garcia's motion to withdraw his guilty plea.

                                      DISPOSITION

       The judgment is affirmed.


                                                                                 NARES, J.

WE CONCUR:



              McCONNELL, P. J.



                      HALLER, J.




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