Filed 12/18/15; pub order 1/5/16 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT


THE PEOPLE,                                               H040563
                                                         (Santa Clara County
        Plaintiff and Respondent,                         Super. Ct. No. 127937)

        v.

BINIAM ASGHEDOM,

        Defendant and Appellant.



        Defendant Biniam Asghedom appeals from the trial court’s order denying his
Penal Code section 1016.5 motion to vacate his 1989 conviction for possession of
cocaine base for sale (Health & Saf. Code, § 11351.5). He claims that the trial court
abused its discretion in finding that he had failed to show prejudice. We find that the trial
court abused its discretion in finding that defendant had failed to show prejudice, and we
remand the matter to the trial court for it to resolve whether defendant made the required
showing of reasonable diligence.


                                                I. Background
        Defendant is a native and citizen of Eritrea. He has been a lawful permanent
resident of the United States since 1981 when he was 12 years old. Defendant’s 1989
conviction arose from an event that occurred in December 1988 when he was 20 years
old.
       The following evidence was produced at the preliminary examination. On the
evening of December 13, 1988, uniformed police officers witnessed a hand-to-hand
exchange between defendant and another man in a driveway. When the men saw the
officers, they ran. The four officers pursued both men, who ran in the same direction. As
the two men were running away, one of the pursuing officers saw defendant reach into
his waistband and drop a loaded handgun on the ground. This officer also saw defendant
throw a plastic baggie onto the porch of a residence and sit down on the porch. The
baggie contained 10 to 15 rocks of cocaine base weighing a total of 2.34 grams. The
rocks were not individually packaged. The officer noticed that defendant was under the
influence of cocaine and arrested him. Along the route of the pursuit, the officer found
defendant’s wallet. On top of the wallet was a glass pipe that contained cocaine residue.
The wallet did not contain a large amount of cash.
       Defendant was charged by information with felony possession of cocaine base for
sale, misdemeanor being under the influence of a controlled substance (Health & Saf.
Code, § 11550), and misdemeanor possession of controlled substance paraphernalia
(Health & Saf. Code, § 11364). The information also alleged that defendant had been
armed with a firearm in the commission of the felony count (Pen. Code, § 12022,
subd. (a)).
       In July 1989, the court gave an indicated sentence of probation, and defendant
pleaded guilty to all three counts and admitted the arming enhancement allegation. There
is no indication in the record that defendant was advised of the immigration
consequences of his pleas and admission. Defendant admitted to the probation officer
that he had been under the influence of cocaine when he was arrested. However, he also
told the probation officer “a very convincing story of being mis-identified as the owner of
both the gun and the cocaine found.”

                                            2
       In August 1989, the court suspended imposition of sentence and placed defendant
on formal probation for three years conditioned on service of a one-year jail term. In
1992, defendant admitted violating his probation by failing to maintain contact with his
probation officer and testing positive for cocaine, and his probation was modified,
reinstated, and extended on condition that he serve an additional 60 days in jail.
       In September 2004, defendant returned to the United States after an overseas trip
and was “not admitted” based on the 1989 felony conviction. Nevertheless, he was
apparently allowed to enter and remain in the United States. In February 2005, based on
his 1989 conviction, defendant was “charged” with being “subject to removal” and
ordered to appear “for Immigration Review” on a date “To Be Determined.” Defendant
was not detained until February 2013. At some point between February 2005 and
February 2013, defendant became subject to a deportation order and an “ICE
[Immigration and Customs Enforcement] hold.” In February 2013, he was detained and
incarcerated in Alabama pending removal proceedings. By that time, defendant had an
adult daughter who is a United States citizen.
       In October 2013, defendant filed a Penal Code section 1016.5 motion seeking to
vacate the 1989 convictions and permit him to withdraw his pleas and admission. He
submitted a declaration in which he asserted that he had not been given immigration
advisements and “would have reconsidered my decision to plead guilty had I been
informed” of the immigration consequences. The prosecution opposed the motion on the
grounds that defendant could not prove prejudice from the lack of advisements and that
he had failed to show reasonable diligence in bringing the motion. It conceded that
defendant had not been given the advisements and was currently subject to adverse
immigration consequences.
       At the hearing on defendant’s motion, his trial counsel argued that “defendant may
well have fought the criminal charge with a hope of winning rather than conceding the
charge with a certainty of being deported.” The prosecutor argued that the court should

                                             3
deny the motion based on defendant’s failure to show reasonable diligence. The court
responded: “Well, let me play a little devil’s advocate. What happened to him in 2004?
I mean, he wasn’t deported. The proceedings weren’t beginning. I mean, couldn’t that
just be just a good argument to say, ‘Why would you be on notice? Nothing happened
before. Why -- why should I worry about it?’ ” The court made no ruling on the
reasonable diligence issue. Instead, the court denied defendant’s motion on the ground
that he “had failed to show prejudice” because he did not “present sufficient credible
evidence that he would not have pleaded guilty had he been properly advised of the
immigration consequences.” Defendant timely filed a notice of appeal.


                                      II. Discussion
       Penal Code section 1016.5 mandates that, before accepting a guilty or no contest
plea, the court must advise the defendant that the plea “may have the consequences of
deportation, exclusion from admission to the United States, or denial of naturalization
pursuant to the laws of the United States.” (Pen. Code, § 1016.5, subd. (a).) “If, after
January 1, 1978, the court fails to advise the defendant as required by this section and the
defendant shows that conviction of the offense to which defendant pleaded guilty or nolo
contendere may have the consequences for the defendant of deportation, exclusion from
admission to the United States, or denial of naturalization pursuant to the laws of the
United States, the court, on defendant’s motion, shall vacate the judgment and permit the
defendant to withdraw the plea of guilty or nolo contendere, and enter a plea of not
guilty. Absent a record that the court provided the advisement required by this section,
the defendant shall be presumed not to have received the required advisement.” (Pen.
Code, § 1016.5, subd. (b).)
       “To prevail on a motion brought pursuant to Penal Code section 1016.5, a
defendant must establish: (1) he or she was not properly advised of the immigration
consequences as provided by the statute; (2) there exists, at the time of the motion, more

                                             4
than a remote possibility that the conviction will have one or more of the specified
adverse immigration consequences; and (3) he or she was prejudiced by the
nonadvisement, i.e., if properly advised, he or she would not have pleaded guilty or nolo
contendere.” (People v. Dubon (2001) 90 Cal.App.4th 944, 951-952.) The defendant
also bears the burden of proving reasonable diligence in bringing the motion. (People v.
Totari (2003) 111 Cal.App.4th 1202, 1208 (Totari).) We review the superior court’s
denial of the motion for abuse of discretion. (People v. Chien (2008) 159 Cal.App.4th
1283, 1287.)
       “ ‘[O]ne of the essential attributes of abuse of discretion is that it must clearly
appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the
court exceeds the bounds of reason, all of the circumstances before it being considered.’ ”
(Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) “The abuse of discretion standard
is not a unified standard; the deference it calls for varies according to the aspect of a trial
court’s ruling under review. The trial court’s findings of fact are reviewed for substantial
evidence, its conclusions of law are reviewed de novo, and its application of the law to
the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court
(2008) 43 Cal.4th 706, 711-712, fns. omitted.)


                                   A. Standard of Proof
                                                                                        1
       Defendant contends that the trial court applied the wrong standard of proof. The
court’s written order stated that defendant “failed to show prejudice” because he did not
“present sufficient credible evidence that he would not have pleaded guilty had he been
properly advised of the immigration consequences.” Defendant asserts that the “clear


1
       Defendant’s brief refers to the “BURDEN OF PROOF,” but it is clear that he is
actually asserting that the court failed to apply the correct standard of proof. The trial
court unquestionably applied the correct burden of proof by placing that burden on
defendant.

                                               5
implication” of the trial court’s language was that it was applying a “preponderance of
the evidence” standard of proof rather than a “reasonably probable” standard of proof.
         Defendant relies on People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183
(Zamudio). In Zamudio, the California Supreme Court agreed that the defendant “must
show . . . that, properly advised, he would not have pleaded no contest in the first place.”
(Zamudio, at p. 192.) This statement concerned the burden of proof. The court also
stated in Zamudio: “Whether defendant was prejudiced by the trial court’s incomplete
advisements is a factual question, appropriate for decision by the trial court in the first
instance. . . . ‘[W]hen the only error is a failure to advise of the consequences of the
plea . . . [the] court must determine whether the error prejudiced the defendant, i.e.,
whether it is “reasonably probable” the defendant would not have pleaded guilty if
properly advised.’ ” (Zamudio, at p. 210.) This statement concerned the standard of
proof.
         The California Supreme Court’s statements in Zamudio illustrate that the
requirement that a defendant “show” that he “would not have pleaded” guilty if properly
advised concerns the burden of proof, which is on the defendant, not the “reasonably
probable” standard of proof that the court applies to the required showing. The trial
court’s statement in this case that defendant had “failed to present sufficient credible
evidence” said nothing about the standard of proof that the court was applying to
determine whether defendant had met his burden of proof. Nor did the prosecutor
mislead the trial court as to the applicable standard of proof; the prosecutor accurately
and expressly relied on the standard of proof set forth in Zamudio.
         We find no basis for defendant’s claim that the trial court applied the wrong
standard of proof since nothing in its order suggested that it was applying anything other
than the standard set forth by the California Supreme Court in Zamudio. “The general
rule is that a trial court is presumed to have been aware of and followed the applicable
law.” (People v. Mosley (1997) 53 Cal.App.4th 489, 496.) We apply that presumption

                                              6
here, since the applicable standard of proof is well established, the prosecutor referenced
it in his pleadings, and the trial court’s order was not facially inconsistent with the
application of the correct standard of proof.


                                  B. Abuse of Discretion
       Defendant claims that the trial court abused its discretion in finding that he had not
satisfied his burden of showing prejudice.
       “[P]rejudice is shown if the defendant establishes it was reasonably probable he or
she would not have pleaded guilty if properly advised.” (People v. Martinez (2013) 57
Cal.4th 555, 559 (Martinez).) “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.” (Martinez, at p. 562.) “The defendant thus must convince the 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.) “[T]he
defendant bears the burden of establishing prejudice. (Zamudio, supra, 23 Cal.4th at
p. 210.) To that end, the defendant must provide a declaration or testimony stating that
he or she would not have entered into the plea bargain if properly advised. It is up to the
trial court to determine whether the defendant’s assertion is credible, and the court may
reject an assertion that is not supported by an explanation or other corroborating
circumstances.” (Martinez, at p. 565.)
       “[I]n determining the credibility of a defendant’s claim, the court in its discretion
may consider factors presented to it by the parties, such as the presence or absence of
other plea offers, the seriousness of the charges in relation to the plea bargain, the
defendant’s criminal record, the defendant’s priorities in plea bargaining, the defendant’s
aversion to immigration consequences, and whether the defendant had reason to believe
that the charges would allow an immigration-neutral bargain that a court would accept.”
(Martinez, supra, 57 Cal.4th at p. 568.) “[T]he critical question is whether the defendant

                                                7
would have rejected the plea bargain, not what the outcome of that decision would have
been.” (Ibid.)
       Defendant’s declaration was not precisely consistent with the requirement that he
provide a “declaration or testimony stating that he or she would not have entered into the
plea bargain if properly advised.” (Martinez, supra, 57 Cal.4th at p. 565, italics added.)
His declaration stated that he “would have reconsidered my decision to plead guilty” if
properly advised. (Italics added.) While his declaration suggested that he might have
chosen not to enter his pleas and admission if properly advised, it did not state that he
would have chosen otherwise. However, since he was required to show only that it was
reasonably probable that he would have chosen not to enter his pleas and admission, the
precise wording of his declaration could not have been fatal to his claim. The trial court
was required to examine the other relevant factors to determine whether it was reasonably
probable that defendant’s reconsideration would have led him to choose not to enter his
pleas and admission.
       It is true, as the Attorney General points out, that when defendant entered his pleas
and admission, he was facing a prison term of three, four, or five years for the possession
for sale count plus another year for the arming enhancement. (Stats. 1987, ch. 1174, § 3,
eff. in September 1987 [former Health & Saf. Code, § 11351.5]; Stats. 1982, ch. 142, § 4,
p. 477 [former Pen. Code, § 12022].) However, as defendant had no prior criminal
record whatsoever, a disposition other than probation was highly unlikely. One relevant
factor was the fact that defendant’s pleas and admission were not entered as part of a plea
bargan. Probation was the “indicated sentence,” which confirms that probation was the
sentence that defendant could expect regardless of whether he pleaded guilty or was
convicted of all charges after a trial. “[T]he indicated sentence must be the same
punishment the court would be prepared to impose if the defendant were convicted at
trial. An indicated sentence, properly understood, is not an attempt to induce a plea by
offering the defendant a more lenient sentence than what could be obtained through plea

                                              8
negotiations with the prosecuting authority.” (People v. Clancey (2013) 56 Cal.4th 562,
575.) Since the indicated sentence of probation was what defendant could expect
regardless of whether he pleaded guilty or went to trial, the trial court could only have
concluded that defendant did not receive any benefit by pleading guilty.
       None of the remaining relevant factors provided any support for the trial court’s
finding that it was not reasonably probable that defendant would not have entered his
pleas and admission if he had been advised of the immigration consequences. Defendant
produced no affirmative evidence that immigration consequences were one of his
priorities at the time of his 1989 pleas and admission, but the evidence compelled such an
inference. Defendant was barely 20 years old and had lived in this country since he was
12 years. Since he had nothing to gain by pleading guilty, as he could expect to be
granted probation whether he pleaded or not, the only reasonable inference that the trial
court could draw was that it was reasonably probable that, if he had known that his guilty
pleas and admission would threaten his permanent resident status, he would not have
entered the pleas and admission. It was also a relevant factor that defendant denied his
guilt on the felony count and was able to provide “a very convincing story of being mis-
identified.” The court could not reasonably conclude that this factor did not support
defendant’s petition.
       Thus, all of the relevant factors supported defendant’s assertion that it was
reasonably probable that he would have chosen not to enter his pleas and admission if he
had been advised of the immigration consequences. Because all of the evidence
supported defendant’s position, the trial court’s contrary finding exceeded the bounds of
reason under the circumstances and therefore constituted an abuse of discretion.
       The Attorney General contends that we should nevertheless affirm the trial court’s
order because defendant failed to establish reasonable diligence even though the trial
court made no finding on reasonable diligence. “The issue of diligence is particularly
fact dependent.” (Totari, supra, 111 Cal.App.4th at p. 1208.) As the trial court’s

                                             9
statements at the hearing reflected, the evidence did not unerringly support the
prosecution’s claim that defendant had not acted with reasonable diligence. The trial
court plainly did not resolve any factual issues concerning defendant’s reasonable
diligence nor did it exercise its discretion to determine whether defendant’s showing of
reasonable diligence was adequate. As an appellate court, it is not our role to resolve
factual issues and exercise discretion in the first instance. The appropriate disposition is
to remand this matter to the trial court with directions to reconsider defendant’s motion
and resolve whether defendant made the requisite showing of reasonable diligence.


                                      III. Disposition
       The order is reversed, and the matter is remanded to the trial court with directions
to reconsider defendant’s motion and resolve whether defendant made the required
showing of reasonable diligence.




                                             10
                                   _______________________________
                                   Mihara, J.



WE CONCUR:




_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Márquez, J.




                                    11
Filed 1/5/16

                          CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SIXTH APPELLATE DISTRICT


THE PEOPLE,                                          H040563
                                                     (Santa Clara County
        Plaintiff and Respondent,                     Super. Ct. No. 127937)

        v.                                           ORDER GRANTING REQUEST
                                                     FOR PUBLICATION
BINIAM ASGHEDOM,

        Defendant and Appellant.


BY THE COURT:
        Pursuant to California Rules of Court, rule 8.1105(b), the request for
publication is hereby granted. It is ordered that the opinion in this matter, filed on
December 18, 2015, shall be certified for publication.



Date:                                      ____________________________
                                           Mihara, J.


                                           ____________________________
                                           Bamattre-Manoukian, Acting P. J.


                                           ____________________________
                                           Márquez, J.
Trial Court:                                  Santa Clara County Superior Court


Trial Judge:                                  Honorable Griffin M. J. Bonini


Attorneys for Plaintiff and Respondent:       Kamala D. Harris
                                              Attorney General of California

                                              Gerald A. Engler
                                              Senior Assistant Attorney General

                                              Seth K. Schalit
                                              Supervising Deputy Attorney General

                                              Laurence K. Sullivan
                                              Supervising Deputy Attorney General

                                              Kevin Kiley
                                              Deputy Attorney General


Attorney for Defendant and Appellant:         Michael K. Mehr
                                              Under Appointment by the Sixth
                                              District Appellate Program




People v. Asghedom
H040563




                                          2
